Colorado LegiSource

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

Year: 2021

  • Throwback Thursday: Looking Back at 1921 and the Twenty-third General Assembly – Part 1

    by Patti Dahlberg

    If we went back fifty regular legislative sessions and one hundred years, what would we find?

    In Colorado, as a result of the November 1920 election (the first national election in which women were able to vote), Republicans retained control of the Colorado House of Representatives with 58 Republicans to seven Democrats, and Democrats lost control of the Colorado Senate with 24 Republicans to 11 Democrats.

    Coloradans passed four ballot measures:

    Six ballot measures failed:

    • Four initiatives: “Practice of chiropractic and providing for the regulation and licensing thereof”, “Creating the County of Limon”, “Creating the County of Flagler”, and “Providing for the construction of the Moffat, Monarch, and San Juan tunnels and a bond issue therefor”; and
    • Two referred measures: “Increasing the salaries of the Governor, the Secretary to the Governor, Justices of the Supreme Court, and judges of the district courts” and “Increasing the number of county judges”.

    So what was the economic, political, and social climate in America leading up to the 1921 legislative session?

    In September of 1920, America suffered the worst terrorist attack in its history (at least until the 1995 Oklahoma City Bombing) when a large explosive on a horse-drawn carriage was detonated on a busy Wall Street corner. The explosion killed 38 people and injured hundreds of others. In Colorado, the Denver Tramway Strike of 1920 left seven people dead and 50 injured. The Ku Klux Klan, founded during Civil War Reconstruction and known for violence against Blacks, reemerged in the 1920s and started targeting immigrants and certain religious organizations. The Klan tied their messages to the issues of prohibition and clean living. Finding a more mainstream audience as a result, they became involved in local and state politics in many states. Several race riots took place across the country, most notably the Tulsa race massacre where mobs of white residents destroyed 35 square blocks of a predominantly Black business district, leaving at least 35 people dead, and more than 800 people hospitalized. Historians now believe that up to 300 people may have died due to the violence.

    On a brighter note, women won the right to vote when the 19th Amendment was ratified by two-thirds of the states on August 18, 1920, (Colorado ratified the 19th Amendment on December 15, 1919, during a special legislative session) and in the November election, Colorado elected three women to serve in the Colorado House of Representatives. Colorado actually initiated female representation in its House of Representatives in 1895 when the citizens elected Clara Cressingham, Carrie Holly, and Frances Klock. The electronic news media was born when a Pennsylvania radio station began airing regular news broadcasts.

    The economic prosperity and freewheeling social spirit associated with the Roaring Twenties started with a struggling economy. The Spanish flu pandemic killed around 675,000 Americans (50 million people worldwide) before it was all over. A great number of the flu deaths were among working-age adults, and economists have suggested that the flu was responsible for a six to eight percent decline in worldwide gross domestic product. In addition, the adjustment from a wartime to peacetime economy proved to be a shock to the U.S. economy. Factories had to shut down completely or shut down until retooled to produce other products. Another factor that may have contributed to the economic downturn was a surge in the civilian labor force created when the troops returned from the war, adding to unemployment numbers and wage stagnation. In 1918, the Armed Forces employed 2.9 million people, which fell to 380,000 by 1920. As Europe recovered from war devastation, its agricultural output increased, causing a decline in American agricultural commodity prices. The Dow Jones hit a peak of 119.6 on November 3, 1919, only to spiral downward for the next 20 months, finally bottoming out at 63.9 (a 47% decline) on August 24, 1921. 1920 was a terrible year for businesses; those that did not fail saw huge declines in profits. All these factors combined to cause a deflationary recession, later known as the Depression of 1920-1921, lasting from January 1920 to July 1921.

    In Colorado, probably few people anticipated the economic impact the end of the war would have on our state. After all, the farming and mining industries, which had ramped up production to meet wartime demand, enjoyed an initially strong post-war market demand. But as Europe recovered and Europeans became less dependent on America for food and other products, prices fell and food producers found themselves hard pressed, especially on the plains of northeast Colorado. They had borrowed heavily to expand and cash in on the wartime bonanza. As returns diminished, debts were more difficult to service, and Coloradans were hurting.

    In the second part of our look back at 1921 and the Colorado Legislature, we’ll take a closer look at the start of the 23rd General Assembly and how it met the challenges of its time.

    Sources:

    http://www.strongsisters.org/the-elected-women/

    http://www.leg.state.co.us/lcs/ballothistory.nsf/

    https://www.britannica.com/event/Wall-Street-bombing-of-1920

    https://coloradoencyclopedia.org/article/denver-tramway-strike-1920

    https://www.pbs.org/wgbh/americanexperience/features/flood-klan/

    https://en.wikipedia.org/wiki/Depression_of_1920%E2%80%931921

    1921 Tulsa Race Massacre

     

     

  • Contracting for the Publication of the Colorado Revised Statutes

    by Jennifer Gilroy

    Have you ever stopped to wonder how those pretty red statute books, the Colorado Revised Statutes, are published? As you can imagine, it’s very important that citizens have access to the law. So important, in fact, that the state constitution requires the General Assembly to publish the laws it passes at each legislative session. The General Assembly satisfies this requirement by annually publishing the Session Laws of Colorado, a three-volume set of books in which every bill enacted during a legislative session is published.

    In addition, the statutes that are created, amended, or repealed in each of those bills are then codified by subject matter in the collective body of Colorado law known as the Colorado Revised Statutes (CRS)—the previously mentioned red books on your book shelf and at public libraries and courthouses. There are 26 volumes including a two-volume index and a two-volume publication of the Colorado Court Rules.

    The legislature’s Office of Legislative Legal Services (OLLS) prepares the databases for both the Session Laws and the CRS, by making the necessary changes in the former year’s CRS database to reflect the additions, changes, and repeals resulting from the work of the General Assembly during the legislative session.  The work of the OLLS in preparing the CRS also includes drafting the history (or “source”) notes, the editor’s notes, and the annotations of relevant appellate court opinions for each statutory section of law. Once the OLLS has completed compiling the Session Laws and the CRS—which takes a lot of meticulous work and time (the law needs to be published accurately!)—the OLLS sends the giant databases to the contract printer to format, print, bind, and distribute. But who is the contract printer, how is the contract printer selected, and when?

    Like most things, the actual printing of the Session Laws and CRS are governed by state statute. The statute requires that the contract must be bid and awarded in a manner directed by the Committee on Legal Services (Committee), a bipartisan committee of ten legislators, five each from the Senate and the House of Representatives. The Committee must employ standard bidding practices to select the contract printer. Historically the Committee has done so through the use of a request for proposals or “RFP” process.

    The governing statute also sets some limits on the contract. For example, the term of the contract may not exceed five years.  The statute allows a contract to be extended once for up to five more years, but requires the contract to be rebid no less frequently than every 10 years.  Since 2002, the Committee has awarded the print contract to LexisNexis out of Charlottesville, Virginia. The contract awarded to LexisNexis in 2002 was for five years, and the Committee extended it in 2007 for an additional five years.  In 2012, the Committee put the print contract out to bid as required by the statute, and the Committee awarded a five-year contract to LexisNexis. That contract was extended for an additional five years in 2017.

    So now another 10 years have lapsed, and the Committee must once again put the print contract out for bid because the current extension will expire December 31, 2022. The RFP process is lengthy and requires a significant amount of the Committee’s time. Therefore, meetings for the OLLS to advise the Committee about the RFP process, for the Committee to review the RFP before it is published, and for the Committee to meet with those who submitted proposals and select a contract printer must begin sooner than later. The Committee will have its first meeting to address the publications contract on March 25, 2021, with more meetings to follow over the summer and fall months. Once the Committee selects a contract printer, the OLLS will negotiate the actual terms of the contract with the successful bidder and draft the contract. The statute requires the state controller and the attorney general to approve the contract, and, ultimately, the contract must be executed by a representative of the selected contract printer and the chair of the Committee.

    It’s a long and time-consuming process but one that is intended to provide fairness, transparency, and reliability in the quality of the final products: The Session Laws and the Colorado Revised Statutes.

  • Privacy Laws and the Free Speech Clause of the First Amendment

    by Jery Payne

    Should a state be able to pass laws protecting people’s privacy? Should the constitution protect a person’s right to freedom of speech? If you think the answer to both is “yes,” then you might be surprised to learn that those two goals can conflict.

    In 2007, Vermont passed a prescription­-confidentiality law, which forbade pharmacies from gathering and selling, for marketing, information detailing the prescriptions written by doctors. This law didn’t regulate the release of patient information; it was concerned with what prescriptions doctors were writing. This information is valuable because the drug companies can use it to market drugs to the doctors that are actually treating the types of patients the drugs may help.

    This law riled up drug manufacturers and data miners, who filed a lawsuit, Sorrell v. IMS Health Inc., in a United States district court. The lawsuit wended its way to the United State Supreme Court, which struck down the law based on the Free Speech Clause of the First Amendment to the United States Constitution. The Court had two main concerns:

    (1) The law was content-based, which means one has to look at the information to know if the law applies. When a law is content-based, the courts will normally consider it suspect under the First Amendment’s guarantee of freedom of speech, and this means that it’s unlikely to survive a challenge.

    (2) The law discriminated against certain users of the information. The Court was concerned that the law discriminated against people who would use the information to market drugs. That is, the pharmacies could sell the information to any person that wasn’t a drug manufacturer or marketer. Now, drug companies are the primary market for this information, but maybe a company that provides medical alternatives to drugs would be interested in the same information. The Court considered this fatal to Vermont’s claim that it was protecting the doctors’ privacy. If the law allowed broad communication of information except for one group of people, the Court thought that it didn’t really protect privacy. The Court contrasted this with the Health Insurance Portability and Accountability Act of 1996, which generally forbids the release of patient information:

    For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e.g., Health Insurance Portability and Accountability Act of 1996 …. A statute of that type would present quite a different case than the one presented here.

    In the holding, the Court also explained:

    This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. … [I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category….

    This case developed our understanding of the Free Speech Clause; that it not only affects laws that disseminate information, but it also affects laws that forbid creating or gathering information.

    In 2015 and 2016, Wyoming passed and amended a statute that made it illegal for a person to cross “private land to access adjacent or proximate land where he collects resource data” without the owner’s permission or other types of legal authority. I expect many of you may be wondering, “What does ‘resource data’ mean?” The statute, section 6-3-414, defined the term as “data relating to land or land use, including … data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species.” So the law applied broadly and aimed at protecting the privacy of landowners.

    In a case named Western Watersheds Project v. Michael, the 10th Circuit Court of Appeals more or less overturned the Wyoming law for violating the Free Speech Clause of the First Amendment. The appeals court was following Sorrell.

    If the law had merely forbid crossing private land, there wouldn’t have been a problem. The court explained that there is no “First Amendment right to be exempt from an otherwise generally applicable law in order to facilitate speech indirectly limited by the [law].” The state may forbid trespass although it would stop you from having your say on someone else’s land. This is because the law has a legitimate purpose that isn’t directly related to speech.

    But the Wyoming law didn’t merely forbid trespass; the law forbade trespass for the purpose of getting resource information. The law was content-based; you had to know what type of data was collected to know if the law applied. According to the Court, “The challenged statutes apply specifically to the creation of speech,” and thus “are subject to the First Amendment.”

    The lower court had dismissed the lawsuit upon summary judgment, which means that there hadn’t actually been a trial yet. So the appeals court stopped short of striking down the law. But the appeals court ruling made it extremely unlikely that the law would survive. As expected, the district court ended up declaring the law unconstitutional.

    Colorado and Wyoming are in the same judicial circuit, so this ruling applies in Colorado. So when thinking about a law to protect privacy, we would do well to be careful when (1) the law applies to obtaining only certain types of information or when (2) it’s aimed at one particular group. The first may be considered content-based and the second may be considered forbidden discrimination. It might seem better to narrowly tailor a law to apply only to the information we care about or to the group that wants the information, but either strategy may cause a court to hold that the law violates the Free Speech Clause of the First Amendment.

  • The FAQs of Responding to CORA Requests

    by Duane Gall and Megan Waples

    Editor’s note: This article was originally written by Kate Meyer and published December 7, 2017. The article has been edited and updated as appropriate.

    Odds are, if you spend any time in the Capitol as a legislator or staff member, you’ll be the recipient of a “Colorado Open Records Act” (CORA) request at some point. In fact, given the recent uptick in CORA requests—and no sign that this trend is abating anytime soon—you may even have multiple requests with which to deal (if you haven’t already!).

    This article addresses issues and answers questions that frequently arise for legislators and legislative staff in responding to a CORA request. Specifically, we’ll talk about deadlines associated with requests, tips for finding records, and other considerations you may find helpful. [Note: In addition to CORA, this article refers to the policies of the Colorado General Assembly regarding public records requests. The policies are included in the “Legislative Policies Related to Public Records and E Mail,” dated July 2019 (“the Policies”) and are available through the “Open Records Requests & Policy” link at the bottom of the Colorado General Assembly website.]

    Deadlines

    I’ve received a CORA request; what do I do and when do I need to do it? The first thing a legislator or legislative staff person should do is contact the Office of Legislative Legal Services, and he or she should do so as soon as possible. As you will see below, time matters in responding to CORA requests. The OLLS staff will work with you to prepare a response.

    LegiSource previously covered the nuts and bolts of being “CORA’d.” Please refer to that article, and the Policies, for a broad overview of the process–and keep in mind that CORA imposes strict deadlines. Generally, upon receiving a CORA request, recipients have three business days to respond in some fashion, although production of all of the requested records may not actually be completed within that time.

    This CORA request is dated more than three days ago, but I only just opened the email/got the letter/found out about it from OLLS. What is my deadline to respond? According to subsection II.C.5 of the Policies, the CORA clock starts ticking when the recipient actually receives the request or, in the case of a request to a legislator that is also sent to the Office of Legislative Legal Services (OLLS), the earlier of when the legislator actually receives the request or when the OLLS notifies the legislator of the request and confirms that the legislator is aware of it. So, how does this work in real life?

    • Example 1: If a CORA request arrives on August 1st (i.e., during the interim) via United States mail to a legislator’s office at the Capitol, and the legislator doesn’t open it until he or she is in the office on September 1st, the period of time in which to respond commences on September 1st, and a response is due three business days later on September 4th.
    • Example 2: The same CORA request from Example #1 is also sent to the OLLS, in accordance with the Policies. The OLLS receives its copy on August 1st and promptly leaves a message for the legislator to whom it is addressed. The legislator and the OLLS actually discuss the request on August 4th. In this case, August 4th is the day from which the response deadline is calculated, so the response will be due on August 7th.

    Ack! I need some time to get to my records to determine whether I have any to produce. Despite the stringent deadlines that attach to any CORA request, there is some wiggle room (up to seven additional business days) for recipients when “extenuating circumstances” exist. Even so, the recipient must provide written notice to the requestor, within the initial 3-day window, that the recipient is invoking an extension due to extenuating circumstances.

    Ok, but what constitutes “extenuating circumstances”? Subsection II.D.3 of the Policies states that extenuating circumstances exist when a request is submitted during the legislative interim and the recipient legislator’s office is closed. CORA itself provides that extenuating circumstances apply when an agency can’t fulfill a broadly stated request encompassing a large volume of records. In the case of the general assembly or its staff or service agencies, this specifically includes the period when the general assembly is in session (section 24-72-203 (3)(b)(II)(B), C.R.S.).

    Of course, “extenuating circumstances” do not exist when the CORA request is merely inconvenient. Because someone may file a CORA request at any time and the turnaround period is so short, CORA requests can be very inopportune. Although “[r]esponding to applications for inspection of public records need not take priority over the previously scheduled work activities of the custodian or the custodian’s designee” (Policies, subsection II.D.2.a), CORA recipients must take their duties under the law seriously even when a request comes at a bad time.

     

    Finding records

    How should I assess whether I have responsive records? First, read the language of the request carefully. Many requests are limited to certain dates, names, terms, topics, and types of records. A legislator responding to a CORA request should keep in mind the request’s parameters. Start by using the request itself to identify appropriate search terms. Often, certain records are specified or terms are provided. If not, reassess: Is the request sufficiently specific to enable the legislator to comply? If so, proceed, making reasonably diligent and good faith efforts to devise search terms to unearth any responsive records. If not, the requestor will need to be contacted to clarify his or her submission. Please consider allowing OLLS to handle this on your behalf.

    So, do I just need to check through my emails? No, not necessarily. CORA and the Policies broadly define “public records” to include many types of records. Only if the request is explicitly limited to emails should the legislator confine his or her review to emails. If the CORA request seeks records in broad-based categories such as “all correspondence/records/documents” or “any communications,” the type of records covered by those broad categories is not limited to emails but could be any type of correspondence—printed letters or memoranda, hand-written notes, screenshots of text messages or social-media posts, etc.

    Reviewing and retrieving my records will take me a few hours because I potentially have quite a few records to produce. In that case, please STOP! If responding to a CORA request will require more than one hour, the requestor must pay a deposit based on the estimated time required (not counting the first hour) to retrieve any potentially relevant records. Therefore, if it appears that you will need more than one hour to respond to a request, please give OLLS an estimate of the time that it will take. (In the case of emails, you can estimate the number of emails that may be responsive to the request, because we apply a standard factor of 2.5 minutes per email to calculate the time required to process emails.) The OLLS will then multiply the estimated time by an hourly rate to calculate the estimated search-and-retrieval fee.

    The requestor must pay a deposit, equal to the estimated search-and-retrieval fee, within 30 days. Only when this payment is received should you proceed with actually assembling the requested records. If payment is not received within the 30-day period, the CORA request is deemed closed and no further action is required.

    The requestor must be notified of the requirement for payment of the deposit within three business days after receiving the request unless extenuating circumstances exist. (See item #3 in Deadlines, above.)

    Because the fee deposit is based on an estimate, the actual number of records located and the corresponding time spent retrieving and reviewing those records in order to respond to the CORA request may vary from the estimate. If it falls below the estimate, the overage paid by the requestor is refunded to him or her. If it exceeds the estimate, the requestor must pay a supplemental fee to cover the amount of time the legislator estimates will be necessary to retrieve the remaining volume of records.

    Do I have to produce my personal records that contain a term or otherwise appear to fall within the scope of the CORA request? Not necessarily. It’s the nature of the record, and not the platform on which it is created or stored, that is determinative. The mere fact that a document is created during one’s tenure as a legislator does not render it a public record. CORA defines “public records” as writings “made, maintained, or kept by the state, any agency, … or political subdivision of the state … for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.” Further, the Colorado Supreme Court has observed that the definition of “public records” in CORA is intended to preserve a balance between private and public interests. Accordingly, the scope of CORA’s “public records” definition limits the type of documents covered by CORA to those that relate to the performance of public functions or the receipt and expenditure of public funds. The Supreme Court has stated that “CORA was not intended to cover information held by a government official in his private capacity.” https://www.courtlistener.com/opinion/2623451/wick-communic-co-v-montrose-county-board/

    On the other hand, a public record is a public record regardless of the medium. So if a legislator uses a personal email account to conduct public business (e.g., relating to the performance of official functions), the records pertaining to that public business are still “public records” and must be disclosed if requested under CORA.

    Is my constituent correspondence subject to disclosure under CORA? Potentially, yes. CORA’s definition of “public records” explicitly exempts a constituent communication that “clearly implies by its nature or content that the constituent expects that it is confidential or is communicated to request assistance or information relating to a personal or private matter that affects the constituent and that is not publicly known.” But any other constituent correspondence (e.g., an email urging that a legislator vote for or against a particular bill) is subject to disclosure. If a legislator has constituent correspondence that falls within the definition of “public records,” the OLLS will assist in redacting the constituent’s personal e-mail address and any extraneous matter such as forwarding headers, etc., before the document is released.

    Any other lifelines I can use? In addition to the OLLS, legislators may want to use their own staff members (aides, interns) for assistance in responding to a CORA request. Aides and interns are often tech-savvy and are familiar with the types, locations, and amount of records in a legislator’s custody. And legislators may want to apprise their caucus’s leaders or staff about CORA requests so that they can track and assist with the responses if desired.

    Other Considerations

    The requestor didn’t specify a reason for the request/I suspect the request is ill-intentioned. CORA does not require a requestor to explain why a request is submitted or for what purpose or in what manner any documents produced in response will be used. A record is either subject to inspection or not; the motivation for the request is irrelevant.

    The request I’ve received is very, very broad; doesn’t the request need to be limited in some way? There is no requirement that a request contain any parameters; in fact, requests are often couched in expansive terms. For example, requestors can state that they are seeking “all records” that include a certain term (e.g., “energy” or “House Bill xxxx” or “the Jane Doe Lobbying Firm”), and they do not otherwise narrow the scope of the request. This approach can be deliberate (if a requestor isn’t certain what records may exist and thus wants to cast a wide net) or inadvertent (if a requestor doesn’t anticipate the large volume of records that a custodian may have in his or her possession that may contain the sought-after term). So long as the request is “sufficiently specific to enable the custodian to locate the information requested with reasonable effort” (Policies, subsection II.C.1.), that’s all that matters.

    Once I’ve been CORA’d, may I continue to discard records in accordance with my usual records retention process? No, at least not with respect to any records that may be included within the scope of the CORA request. You should treat a CORA request the same way you would treat a litigation hold, under which a person is obligated to preserve records for a certain amount of time in anticipation of future potential use at trial. Once the CORA request is completely concluded, you may proceed with document disposal pursuant to your normal retention and disposal policy. (For more information on developing such policies, please refer to Subsection IV of the Policies and consult with the OLLS.)

    Whew! Responding to that CORA request seemingly took forever; how can I reduce the amount of time the next one takes? You can mitigate the time spent responding to requests by creating (and abiding by) a written records retention policy that establishes how long you keep various types of records, the frequency with which you dispose of records, etc. The fewer records in existence, the lower the volume of records that you may have to review and therefore potentially less time you will spend searching for, retrieving, and reviewing them. Alternatively, you may feel it necessary, in order to adequately complete your legislative duties, to maintain records for significant lengths of time. The Policies contain a number of guidelines and recommendations regarding records categorization, retention, and deletion; you may also consult with the OLLS. If you decide to establish a written records retention policy that could affect the documents produced in response to a specific CORA request, the policy must be in place before the request was received.

  • The New Legislative Information Resource Center at the State Capitol is Open!

    by Darren Thornberry

    Picture of the new library space, featuring a work table and wooden shelving, a ladder, and research books.The Colorado General Assembly is back in session and with it comes the opening of the dazzling new Legislative Council Resource Center. The remodeled space in the basement of the Capitol building consists of the Legislative Council Staff (LCS) front reception, the legislative library, and offices for up to four staff members.

    Yes, the legislative library is still here! LCS staff maintain library services, including access to statutes, session laws, journals, and recordings of legislative hearings, and the office is open to all legislative staff and the public for legislative research.

    The renovation of the space that was formerly the legislative library had two purposes: First, renovating the library space allowed LCS to consolidate two front-Another angle of the newly renovated library facing offices–the Joint Legislative Library and the LCS front office—to serve both purposes in one space. Now there is a streamlined entrance to LCS staff offices, and a single place for legislators and the public to access legislative resources and LCS staff. The second purpose was to renovate existing LCS office space to house the Office of Legislative Workplace Relations, which is now located in Room 026 in the north end of the Capitol basement.

    A key renovation goal was to restore the space to the Capitol’s “Period of Significance,” which was established as 1904, when the Dome was first gilded with gold. A unique find during construction was a gallery/hallway similar to the open gallery that is on the 1st Floor directly above the renovated space.

    The new Legislative Information Resource Center, located at the foot of the Capitol’s Grand Staircase in the basement, is a comfortable resource area for members of the legislature, legislative staff, and the public to easily access legislative resources and LCS staff.

    Left to Right: Legislative Council’s Elizabeth Haskell, Elizabeth Burger, and Juanita Hill

    L-R: Legislative Council’s Elizabeth Haskell, Elizabeth Burger, and Juanita Hill

    Presently, because of the pandemic, members of the public are asked to call 303.866.3521 to make an appointment to use the library resources.

  • CCUSL Moves Several Uniform Acts Forward for Introduction

    by Patti Dahlberg and Thomas Morris

    The Colorado Commission on Uniform State Laws (CCUSL) is Colorado’s delegation to the national Uniform Law Commission (ULC). The ULC is comprised of more than 300 commissioners appointed by all 50 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico. The CCUSL meets each year during the ULC’s annual conference in July to identify a preliminary legislative agenda of approved uniform acts for potential introduction in Colorado. The CCUSL then typically hosts two or three public meetings at the state capitol to discuss its proposed legislation, listen to interested parties, and finalize its legislative agenda. The CCUSL sends advance notice of the meetings held in the capitol to interested parties, posts meeting information on the General Assembly and the CCUSL websites, encourages public testimony at the meetings, and broadcasts the meetings over the internet.

    The CCUSL held meetings to discuss its legislative agenda on September 18, 2020, and December 16, 2020, and approved eight uniform acts for introduction as commission bills during the 2021 legislative session. The links to the acts provided below are to the ULC version of the uniform acts (unless identified with a bill number), and uniform acts are routinely amended prior to introduction. Links to the Colorado versions of uniform acts will be available on the CCUSL Additional Information page as the bills are introduced. One of the uniform acts approved for introduction was a ULC act newly approved at the 2020 annual meeting and the other seven uniform acts were ULC-approved acts from prior years, a couple of which were introduced during the 2020 legislative session but were sidelined due to the COVID-19 pandemic and shortened legislative session. The eight uniform acts approved for introduction in 2021 in Colorado are:

    • Uniform Electronic Wills Act (UEWA).  Most documents traditionally printed on paper can be created, transferred, signed, and recorded in electronic form. The Uniform Electronic Transactions Act (UETA) and a similar federal law, E-SIGN, provide that a transaction is not invalid solely because the terms of the contract are in an electronic format. But UETA and E-SIGN both contain an express exception for wills, which, because the testator is deceased at the time the document must be interpreted, are subject to special execution requirements to ensure validity and must still be executed on paper in most states. Under the UEWA, the testator’s electronic signature must be witnessed at signing (or notarized simultaneously in states that allow notarized wills) and the document must be stored in a tamper-evident file. States will have the option to include language that allows remote witnessing and the act addresses recognition of electronic wills executed under the law of another state. For a generation that is used to banking, communicating, and transacting business online, this act will allow online estate planning while maintaining safeguards to help prevent fraud and coercion. The Colorado General Assembly enacted the Colorado Uniform Electronic Wills Act (HB21-1004) during the first three days of the 2021 legislative session.
    • Uniform Easement Relocation Act (UERA). An access easement gives the owner of one parcel of real estate the legal authority to travel across another person’s property. Think of a driveway that runs from a public road across one property to access another. In many, but not all, states, the owners of both properties must consent to relocate an easement. When the owner of the burdened property asks to relocate an access easement to allow further development, an easement holder in a state that follows the mutual consent rule can withhold consent to prevent the development or demand a ransom payment before agreeing to the change. The UERA allows the burdened estate owner to obtain a court order to relocate an easement if the relocation does not materially impair the utility of the easement to the easement holder or the physical condition, use, or value of the benefited property. The burdened property owner must file a civil action, give other potentially affected real-property interest owners notice, and bear all the costs of relocation. These conditions build upon the rule contained in the Restatement (Third) of Property: Servitudes, whose approach to easement relocation has been fully or partially adopted in a number of states. The act excludes conservation easements and public-utility easements from its scope and contains a number of additional safeguards, not found in the Restatement, to protect the easement holder’s interest in the use and enjoyment of the easement during and after the relocation.
    • Uniform Recognition and Enforcement of Canadian Domestic-Violence Protection Orders Act. This act provides for the enforcement of domestic violence protection orders issued by Canadian courts. Reflecting the friendship between the United States and Canada, citizens move freely between the two countries, freedom that in certain limited circumstances can work against victims of domestic violence. Canada has granted recognition to protection orders issued in the United States and other countries in the Uniform Enforcement of Canadian Judgments and Decrees Act. By this act, enacting states accord similar recognition to protection orders issued in Canada.
    • Uniform Fiduciary Income and Principal Act (UFIPA). This act is a revision of the former Uniform Principal and Income Act with a new name to differentiate it from predecessor versions. While older trusts often had clear delineation between income and principal interests, modern trust accounting requires flexibility. Trustees now tend to invest for the greatest total return and then adjust between interest and principal to produce a fair result for all the beneficiaries. UFIPA recognizes this trend toward total-return investing and includes unitrust conversion rules to allow even older trusts to take advantage of modern investment trends. UFIPA gives estate planning attorneys additional flexibility to tailor a trust for each client’s needs and includes a new governing law section to help avoid jurisdictional disputes.
    • Uniform Trust Code, Part Five. The Uniform Trust Code (2000) was the first national codification of the law of trusts. In 2018, after significant review of the uniform act by the legal community and with some amendments, the Colorado General Assembly enacted the Colorado Trust Code (SB18-180), deliberately leaving part five out to allow for additional review. The Colorado Bar Association has completed its additional review of part five and suggested amendments, and part five is ready to be considered for inclusion in the Colorado Trust Code.
    • Uniform Automated Operation of Vehicles Act. Automated and partially automated vehicles are already on the roads; this act reconciles automated driving with a typical state motor vehicle code. Many of the act’s sections – including definitions, driver licensing, vehicle registration, equipment, and rules of the road – correspond to, refer to, and can be incorporated into existing sections of a typical vehicle code. This act also introduces the concept of automated driving providers (ADPs) as a legal entity that must declare itself to the state and designate the automated vehicles for which it will act as the legal driver when the vehicle is in automated operation. The ADP might be an automated driving system developer, a vehicle manufacturer, a fleet operator, or another kind of market participant that has yet to emerge. The act uses the motor vehicle registration framework that already exists in states and applies it to both conventional and automated vehicles. By using an existing framework, the act also seeks to respect and empower state motor vehicle agencies.
    • Uniform Collaborative Law. This act provides attorneys guidance in determining whether collaborative law is appropriate for a particular dispute or client. As a uniform state law, the act helps establish uniformity in core procedures and consumer protections, while minimizing the patchwork spread of varying approaches and definitions. The collaborative law process provides lawyers and clients with an important, useful, and cost-effective option for amicable, non-adversarial dispute resolution. Like mediation, it promotes problem-solving and permits solutions not possible in litigation or arbitration. Collaborative law is a voluntary process in which clients and their lawyers agree that the lawyers will represent the clients solely for purposes of settlement, and that the clients will hire new counsel if the case does not settle. The parties and their lawyers work together to find an equitable resolution of the dispute at hand, retaining experts as necessary. No one is required to participate, and parties are free to terminate the process at any time.
    • Revised Uniform Athlete Agents Act (RUAAA). As a 2015 update to the 2000 Uniform Athlete Agents Act (enacted in 42 states, including Colorado), the RUAAA updated the 2000 act to expand some definitions, provide for reciprocal registration between states, add new requirements to the signing of an agency contract, and expand notification requirements. The 2019 Amendment to the Uniform Athlete Agents Act responds to the 2018 changes made to the NCAA bylaws to provide student athletes with more freedom and flexibility to explore the possibility of going professional while retaining their college eligibility. Under the new NCAA bylaws, certified sports agents can cover limited expenses of a prospective or enrolled student athlete and the athlete’s family for meals, hotel, and travel in connection with the agent selection process. Because the NCAA bylaw changes conflicted with the Athlete Agents Acts, the NCAA asked the ULC to amend the two Uniform Athlete Agents Acts so they will not conflict with the bylaw changes. The Section 14 amendment was drafted to clear up the conflict; it was also drafted so that it applies beyond the current bylaws to ensure that the ULC will not have to go to state legislatures every time the NCAA broadens its bylaws. The amendment includes appropriate safeguards so that it applies only if the NCAA makes further changes.

    For more information concerning the ULC and CCUSL, check out these articles:

  • Nonpartisan OLLS Staff Help With More Than Just Bill Drafting

    by Sharon Eubanks

    Although the 2021 legislative session is just now under way again, legislators have already been interacting with the staff of the Office of Legislative Legal Services for their bill and amendment requests, although on a more remote basis. While the pandemic is impacting the manner in which we interact with legislators for the time being, it does not impact what we can do for legislators. The Legislative Legal Services staff, comprised of attorneys and other professional staff, provides a variety of written materials and services to legislators in addition to their bill and amendment drafting needs.  We encourage legislators to learn more about and make full use of the products and services we can provide.  Please visit our web page.

    Legislative Legal Services is the General Assembly’s nonpartisan legal staff agency. Nonpartisanship provides the foundation for how we serve the General Assembly through our interactions with legislators, partisan staff, agency officials, lobbyists, and the public. Legislative Legal Services aims to serve all legislators fairly and impartially, regardless of party or rank, and to ensure our work is objective, balanced, and accessible.

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

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

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

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

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

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

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

    The Legislative Legal Services staff is ready to provide the services and support necessary to help the members of the Seventy-third General Assembly have a productive and successful legislative session in 2021. Whether by phone, video meeting, or an in-person visit to our main office in Room 091 on the ground floor of the Capitol, we encourage legislators to utilize the Legislative Legal Services staff for all their legislative needs, not just for bill and amendment drafting.

    Also, for your convenience, you can access the schedule of all of the deadlines established by the Executive Committee for the 2021 legislative session at https://leg.colorado.gov/sites/default/files/2021_session_jr_44_executive_committee_full_deadlines_schedule.pdf. Since Rule 44 of the Joint Rules of the Senate and House of Representatives was amended at the beginning of the 2021 session, legislative days are now counted consecutively unless the General Assembly temporarily adjourns again for more than three days. The 120th legislative day is currently anticipated to be June 12, 2021, which is the deadline for the General Assembly to adjourn sine die.

  • Constituent Services: Here to Help!

    by Ashley Athey

    Members of the General Assembly, as elected officials representing their respective districts, often receive a number of phone calls, emails, and, at least pre-COVID, in-person requests, questions, comments, and more from their constituents. While office staff help field the initial calls and emails, sometimes constituent requests and questions require a little more research.

    That’s where the Constituent Services Unit of the Legislative Council comes in. They assist members of the General Assembly by providing information to respond to constituent requests. The Constituent Services staff strive to provide quick responses that are short, accurate, objective, and understandable to the constituent. Either a member or the member’s legislative aide, intern, or volunteer may submit a request. Responses may come from the Legislative Council Staff or from an appropriate person in federal, state, or local government.

    Constituent Services staff help with almost any type of constituent request, including requests related to:

    • Current state law or legislation pending before the General Assembly;
    • Operations and services of state government;
    • Federal and local government activity/federal law;
    • State issues, e.g., water, environment, tourism, the economy; and
    • Legislative Council “products” — fiscal notes, economic forecasts, issue briefs.

    The manner in which Constituent Services staff responds varies. They may:

    • Navigate the constituent to the right person in a state agency who can address the constituent’s concern;
    • Connect the constituent with the proper level of government to address the constituent’s concern;
    • Provide information about current law, pending legislation, or state policies;
    • Help someone better understand the law;
    • Directly help resolve the problem (e.g., getting a tax refund or getting a driver’s license ); or
    • Simply listen and acknowledge the concern.

    There are, however, some requests that Constituent Services staff cannot assist with, such as requests for:

    • Voting, attendance, and financial records;
    • Partisan research;
    • Press releases;
    • Legal opinions;
    • Opinion/position papers; or
    • District surveys.

    Only members of the General Assembly or a member’s legislative staff may submit a constituent request to Constituent Services.  A request may be initiated by telephone, fax, email, in writing, or in person.

    Elizabeth Haskell is the Manager of Constituent Services and can be reached at 303-866-6264 or by email. Requests may be submitted to the constituent services staff through email, by phone call, or in person at the Resource Center located at the foot of the main stairs on the ground floor of the State Capitol.

  • Do-overs in the Legislative Process

    by Julie Pelegrin

    Editor’s note: This is the sixth in a series of articles on the legislative rules that LegiSource is reposting during 2020-2021. This article was originally posted April 8, 2016, and has been edited as appropriate.

    A recent LegiSource article explained the rules for reconsideration that allow a committee of reference or the House or the Senate to reconsider the vote taken on a motion. But there are other routes a legislator may take to get a committee or the House or the Senate to take a second look at a bill or amendment.

    Amendments to the Committee of the Whole Report
    The most commonly used process for changing an action is an amendment to the committee of the whole report. Of course, this process only applies to actions taken on second reading in the House or the Senate.

    The second reading of bills is a two-step process. First, the House or the Senate passes a motion to sit as the committee of the whole. Considering bills as a committee that includes all of the Representatives or Senators allows the legislators to act under different rules than would apply if they were taking action formally as the House or the Senate. For example, while acting as the committee of the whole, debate cannot be limited, motions cannot be reconsidered, a decision of the chair of the committee of the whole cannot be challenged, and votes are not recorded.

    The committee of the whole adopts or rejects committee of reference reports and floor amendments to bills, generally debates the bills, and finally adopts, rejects, or refers each bill on a voice or standing vote. Once the committee of the whole has considered all of the bills on the calendar, or as many as it has time for, the majority leader moves that the committee of the whole “rise and report.”

    At this point, the House goes back to doing business as the House and the Senate goes back to doing business as the Senate, because they cannot complete the second reading process without a formal, recorded vote on the bills. This vote occurs when the House or the Senate votes on the committee of the whole report, which includes all of the amendments the committee adopted and all of the bills the committee considered. And, like any other committee report, the report of the committee of the whole can be amended.

    A legislator may offer an amendment to the committee of the whole report to change any action that the committee took – for example, to say that an amendment or bill that the committee passed, did not pass; or an amendment or bill that the committee rejected, did pass. All votes on amendments to the committee of the whole report are recorded. Once it has considered all amendments to the report, the House or the Senate finishes second reading by adopting or rejecting the entire committee of the whole report, as amended if any amendments passed.

    Under the Senate rules, a Senator can offer an amendment to the committee of the whole report to show that an amendment that was not offered in the committee of the whole did pass. Under the House rules, the committee must have actually considered an amendment for it to be the subject of an amendment to the committee of the whole report.

    Why would the House or the Senate adopt an amendment to the committee of the whole report to change something it just did? Since the votes taken in the committee of the whole are not recorded, a legislator may want an official count of the number of legislators voting for or against an amendment or a bill. Also, in the committee of the whole an amendment or bill passes with the approval of a majority of those present and voting. An amendment to the committee of the whole report and final adoption of the report requires the approval of a majority of those elected to the body: 33 in the House and 18 in the Senate.

    Referring bills from 2nd reading back to a committee of reference
    Sometimes, while debating a bill in the committee of the whole, a member will argue that a particular amendment under debate is so technical or substantive that it requires consideration by a committee of reference whose members have special expertise in the subject area. Or the committee of the whole may adopt an amendment that changes the fiscal impact of the bill. In this case, a legislator may move to refer the bill back to a committee of reference – usually the committee that originally considered the bill or the appropriations committee.

    Usually, a bill will be referred back to a committee before it is amended by the committee of the whole, but sometimes the committee of the whole will have already adopted the committee of reference report or other amendments. It is up to the legislators to decide whether the bill is referred back to the committee of reference unamended or as amended by the committee of the whole. In either case, the committee of reference may adopt a second committee of reference report that further amends the bill or changes the amendments adopted by the first committee of reference.

    Referring bills from 3rd reading back to 2nd reading in the House or to a committee of reference in the House or the Senate
    Under House rules, if a member tries to offer a substantive amendment to a bill on third reading, the proper motion is to refer the bill back to second reading for consideration of the substantive amendment. When the committee of the whole considers the bill this time, it will be considering the bill as introduced in the House with any amendments adopted on second reading enrolled into the bill – the engrossed version if it’s a House bill or the revised version if it’s a Senate bill. If the committee of the whole amends the bill on the second consideration, there will be a second engrossed or revised version of the bill.

    At the third reading stage, the House or Senate may also vote to refer the bill back to a committee of reference. In this case, the committee of reference will consider the engrossed or revised version and any amendments that the committee of reference adopts will be to the engrossed or revised version. The committee of reference may then move the bill to the committee of the whole for consideration on second reading – again. But the committee of reference cannot move the bill directly to third reading because House Rule 25 (j)(3) and Senate Rule 22 (f) only allow a committee of reference to refer a bill to another committee of reference or to the committee of the whole or to postpone the bill indefinitely.

  • Addition by Division or How to Create a Judicial District in Colorado

    by Conrad Imel

    Recently, the General Assembly created a twenty-third judicial district in Colorado. But can the General Assembly just make a new judicial district? Even though the judicial department is a separate branch of the government, the state constitution says it can. In this article we’ll look at the General Assembly’s role in creating and changing judicial districts and the recent change that it made.

    Judicial districts are responsible for operating district courts within the district.[1] District courts are the courts of general jurisdiction in Colorado. They hear civil cases involving any dollar amount, criminal matters, and domestic relations cases. District courts also hear cases involving probate and minors, such as adoption, dependency and neglect, and juvenile delinquency; except in Denver, which has a separate probate court and juvenile court to handle these cases.

    Judicial districts weren’t created by the legislature to administer courts; they are required by the state constitution. Article VI, section 10 of the Colorado Constitution declares that “[t]he state shall be divided into judicial districts” and authorizes the General Assembly to change the number and boundaries of judicial districts with a two-thirds vote of the members of each chamber. Presently, state courts are divided into 22 judicial districts. Some districts contain multiple counties while others consist of a single county. Click here to see a map of Colorado’s judicial districts.

    Colorado’s constitution initially provided for four judicial districts with one judge each. Five years later, in 1881, the General Assembly added three new judicial districts, bringing the total number of districts to seven. The General Assembly regularly increased the number of judicial districts over the next 82 years, culminating with the creation of the 22nd Judicial District in 1963. It wouldn’t add another district for nearly 60 years.

    In 2020, the General Assembly passed House Bill 20-1026, creating a twenty-third judicial district that will begin operations on January 7, 2025. Currently, the 18th Judicial District consists of Arapahoe, Douglas, Elbert, and Lincoln counties. Beginning in 2025, three of the four counties, Douglas, Elbert, and Lincoln, will leave the 18th Judicial District and become the new 23rd Judicial District, served by eight judges. HB 20-1026 decreases the number of judges in the 18th Judicial District by seven, from 24 to 17. The bill easily satisfied the constitution’s two-thirds vote requirement, receiving just two “no” votes in the House and one in the Senate.

    For a legislator, creating a new judicial district isn’t as simple as sponsoring a bill and getting two-thirds of your colleagues to agree to it. The state constitution includes a few requirements for judicial districts and judges that the bill sponsor (and bill drafter!) need to keep in mind. First, article VI, section 13 of the Colorado Constitution requires that each judicial district have an elected district attorney, and section 1-4-204, C.R.S., provides that district attorneys are elected at a general election (held in even-numbered years). Any bill establishing a new judicial district will need to account for a district attorney election and the time it takes the newly elected district attorney to assume the office.

    Additionally, the Colorado Constitution requires a district judge to reside in the judicial district in which the judge serves and prohibits abolishing a judge’s office until the end of the judge’s term. A judge may be required to change districts, though, so long as the judge resides in the new district. To comply with these constitutional provisions and ensure that both the new and continuing judicial districts have the proper number of judges who reside in their respective districts, the bill sponsor needs to carefully consider the date the new district will begin operations and account for where the judges of the existing district reside.

    It may not happen as often as it used to, but as long as two-thirds of the members agree, the General Assembly can change the state’s judicial districts. Even if the legislature waits another 50 years to do it again, it will need to be mindful of when the new district begins operations to avoid any constitutional issues.

     

    [1] Judicial districts also operate county courts, except for Denver County Court, which is operated by the City and County of Denver and is, in effect, a combined municipal and county court.