Colorado LegiSource

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

Year: 2022

  • Have roads. Will travel.

    Have roads. Will travel.

    by Patti Dahlberg

    According to the Colorado Department of Transportation (CDOT) Historic Timeline featured on its website, CDOT has been around in some form or another since 1910 – amazingly, only about six years after the first automobile reportedly showed up in Colorado and about 15 years after the first sale of an American-made gasoline car. The introduction of the automobile in Colorado and the commitment to improving the roads “paved the way” for easier travel throughout the state. In many ways, the story of CDOT is the story of the state of Colorado opening its doors for all to explore and enjoy. With the founding of the department, Colorado soon became a tourist destination.

    Purportedly, the first automobile in Colorado appeared in 1904 in Louisville. The first reported trip up a mountain road made by an automobile seems to have taken place in June of 1910, when Francis Percy “Frank” Loveland, the grandson of Colorado pioneer businessman W.A.H. Loveland, of Loveland Pass and the city of Loveland fame, drove up an old carriage road (with a 2,000 foot elevation change) from the Denver-metro area to the top of Mount Falcon (near Red Rocks). The 24-year-old drove his Stoddard-Dayton touring car from Morrison to the Mount Falcon summit (elevation 7,851 feet) in about 20 minutes. An hour earlier, he had set another record by driving from the Capitol building to Morrison in only 29 minutes.

    So how did we get all these roads that take us just about anywhere we want to go to? It started in the late 1870s with the “Good Roads Movement.”  Through this movement, which lasted into the 1920s, farmers’ and bicyclists’ organizations advocated for the investment of state and federal money in improving roads outside of the cities. At the time, the rural roads were dirt or gravel, which meant mud in winter, dust in summer, and slow travel year round. Obviously, these roads were generally bad for bringing goods to market and, of course, for bicycling. And in the mountains, wagon roads could be difficult to navigate and unusable for large portions of the year. When automobiles appeared on the scene, the automobile lobbies wholeheartedly joined in the movement.

    Colorado’s Legislature created its first State Highway Commission in 1909, charging it with the responsibility of establishing a network of state primary roads. In 1913, the Legislature created a series of registration and licensing fees as a funding source for the improvement of the Commission’s proposed 4,380-mile primary road system. The fees varied from $2.50 to $10 (from around $40 to $160 in today’s dollars) depending on the vehicle’s horsepower. By 1915, Colorado’s proposed highway system grew to 5,844 miles, but only about 2,600 miles of those roads were constructed and only 196 miles of them were actually surfaced.

    By the time Congress passed the Federal Aid Road Act of 1916, which provided federal matching funds for state highway projects, Colorado had already been busy constructing roads and mountain passes. In fact, a new automobile road over Wolf Creek Pass was opened to traffic that same year. In 1917, the Legislature reorganized its State Highway Commission into the State Highway Department and passed legislation to create a state highway fund to distribute state and federal funds to develop and maintain Colorado’s highway system. By 1918, the Highway Department laid the first concrete road in the state, which ran from Littleton to Denver along Santa Fe Drive. A year later, Colorado was one of the first four states to pass a gasoline tax, one-cent per gallon (the average price at the time was 25 cents/gallon, $3.22 per gallon in today’s dollars), to raise revenue for a special road fund.

    In 1921, the Legislature, largely in response to the U.S. Bureau of Public Roads’ (BPR) willingness to provide federal aid to states, reshaped and expanded the bureaucracy of the State Highway Department. In 1922, Colorado voters deemed transportation important enough to approve $6 million in bonds for highway construction, which would be over $1 billion today. The BPR approved Colorado’s first federally aided road system, covering 3,332 miles. By 1929 the Colorado State Highway system had grown to 9,203 miles, and by 1938 it was almost 12,000 miles.

    Mountain Roads, Scenic and Historic Byways

    Colorado is home to 26 Scenic and Historic Byways, around half of which are also designated as National Scenic Byways and recognized for their outstanding scenic and historic attributes. Colorado has more national designations than any other state. In 1924, the State Highway Department completed the “Million Dollar Highway,” the Scenic Byway through the San Juan Mountains in Southwestern Colorado on U.S. 550. In 1927, the Mount Evans Highway was completed and opened for travel to an elevation of 14,130 feet, just below the 14,264-foot summit of the mountain. It remains the highest elevation for a paved highway in North America.

    The first automobile crossed Loveland Pass on September 29, 1929, and in that same month work on Trail Ridge Road – the highest continuous paved road in the United States, had begun. The Great Depression brought in federal work projects to help Colorado continue to construct and maintain its mountain highways, as anyone who has driven over Trail Ridge Road and read any of the signs knows. Between 1938 and 1940, Colorado completed the roads over Berthoud Pass (U.S. Hwy 40), Monarch Pass, and the original highway (U.S. Hwy 6) over Vail Pass. Gold prospectors may have brought skiing to the Colorado Rockies in the 1860s, but it was passable mountain roads that enabled it to become the popular winter sport that it is today.

    The boring of the westbound Straight Creek Tunnel (later to be named the Eisenhower Memorial Tunnel) through the Continental Divide to align I-70 near Vail with the existing U.S. Hwy 6 started in 1963 and finished in 1973. The eastbound bore of the Continental Divide tunnel opened in 1979 and was named in honor of former U.S. Senator and Colorado Governor Edwin C. Johnson. The combined tunnels are now officially known as the Eisenhower-Johnson Memorial Tunnel complex.

    And then there’s the crown jewel of Colorado mountain highways – I-70 through Glenwood Canyon. Construction began on “the final link” of west-bound I-70 through the canyon in 1980. Less than 15 miles long, the segment was completed in October of 1992 for around half-a-billion dollars. One of the biggest challenges CDOT faced was how to squeeze a four-lane freeway into a gorge barely wide enough to accommodate the existing two-lane highway and how to do so with minimal impact to the environment. CDOT’s solution was clever: construct two roadways, one nearly on top of the other. The final design features an elevated roadway with 40 bridges and viaducts spanning more than six miles between sections. Construction materials included 15 miles of retaining walls, two 4,000 foot tunnels, 150,000 newly planted trees and shrubs, 30,000 tons of steel, and 810,000 tons of concrete. Soon to be 30 years old, the Glenwood Canyon portion of I-70 is not only a beautiful stretch of road, but considered by many to be a modern marvel. The two-tiered elegantly sculpted highway through the Colorado River gorge remains a vital transportation corridor and a popular tourist attraction. The 12.5-mile engineering feat has received a presidential commendation and numerous design awards. It has been featured in books and in a museum exhibit on 20th century engineering achievements.

    Sources:

  • LegiSource is on Hiatus

    The Colorado LegiSource is taking a break for the next several weeks. We expect to resume weekly postings on September 8. In the meantime, if you have questions you would like answered or issues you would like to see discussed on the Colorado LegiSource, please contact us using our feedback form.

     

  • GA Adjourns After Just 120 Days (Phew!)

    GA Adjourns After Just 120 Days (Phew!)

    by Julie Pelegrin

    For the first time in two years, the General Assembly adjourned May 11, 2022, on the 120th consecutive calendar day after it began on January 12th. While we may not consider this session normal by all standards (no one wants all-night debates as the new normal), it at least began and ended on time.

    The number of bills introduced falls within the normal range, as well. Legislators introduced 657 bills during the 2022 legislative session, which is comparable to the 623 bills introduced in 2021, 651 bills introduced in 2020, and 598 bills introduced in 2019, but pretty far short of the 721 introduced in 2018.

    That’s not to say everything ran on time throughout the 2022 session. With just one month left in the session, there were still 186 bills on a committee calendar in the house of introduction (i.e., those bills had not progressed through the legislative process beyond initial introduction). When the session dwindled down to two weeks there were still 152 bills in the first house committee, but with only a week remaining, just 39 bills remained in the first house committee. With six working days left in the session, the House and the Senate combined had 287 bills awaiting action on the calendar. They passed or killed 261 of them, leaving just 26 bills to die on the calendar (deemed lost or deemed postponed indefinitely) when the legislature adjourned.

    The term “working day” also took on a new meaning this session, mainly for the House of Representatives. At least twice, the House began debating bills on second reading on one day and continued those debates through the night and into the next morning. The first time – March 11-12 – they began debating bills on second reading at about 10:20 a.m. on Friday and didn’t wrap up until about 11:15 a.m. Saturday. The second time – May 9-10 – they began debating bills around 5:00 p.m., but this time they finished early – about 6:30 a.m. on May 10 – then came back for more at 11:00 that day and didn’t finish until about midnight. Overall, in the last five working days of the session, the House adjourned after 11:00 p.m. each night, and the Senate worked until at least 10:45 p.m. each of those nights except one. By the time the final gavel came down in the House at 11:35 p.m. on Wednesday, May 11 (10:55 p.m. in the Senate), legislators, staff, lobbyists, and anyone still watching on YouTube were ready for some sleep.

    That was the 2022 legislative session. What’s in store for the 2022 interim and the 2023 session?

    Beginning in July, 16 legislative interim study committees are authorized to begin meeting on a wide variety of topics including health insurance, school finance, jail standards, judicial discipline, transportation, water, and wildfires. Each interim committee is authorized to recommend bills to the Legislative Council. Because 2022 is an election year, the Legislative Council must meet no later than October 15 to decide whether to approve the bills for introduction during the 2023 legislative session.

    And speaking of elections, all of the seats in the House of Representatives are up for election in November. Eight of the incumbent representatives are term limited and cannot run again for their House seats; another 13 representatives are either running for another office or have decided not to run for other reasons. In the Senate, approximately half of the seats are up for election. Six of the incumbent senators are term limited and so will not be returning, and four others are either running for another office or have decided not to run for other reasons.

    So, when the Seventy-fourth General Assembly convenes on Monday, January 9, 2023, there will be at least 21 new representatives and 10 new senators. At least two of the persons elected to leadership positions in the House – Speaker of the House and Majority Leader –and at least one of the persons elected to a leadership position in the Senate – the Minority Leader – will be new to their positions. And that’s just the minimum amount of change that can be expected.

    For now, the legislative staff will quietly work to wrap up the work from the 2022 session, including preparing the 2022 C.R.S. for publication, writing final fiscal notes and summaries of the legislation that passed, and preparing the final appropriations report for the 2022-23 fiscal year; legislators will return to their districts to campaign and reconnect with their constituents; and everyone will hope for a little downtime before it’s time to prepare for the 2023 legislative session.

    Peace out, ya’ll.

     

    [1] Not surprising, the passage rate dipped to 51% with the onset of the pandemic in 2020 and an abbreviated legislative session lasting just 84 days.

  • What does it take to get a bill to the Governor?

    What does it take to get a bill to the Governor?

    by Kathy Zambrano and Anja Boyd

    You’d think that once a bill makes it through both houses and the first house concurs with second house changes, if necessary, the bill would land on the Governor’s desk in a day. But in most cases, there’s a lag time of up to five working days – oftentimes more as we move to the end of the legislative session – before an enacted bill gets presented to the Governor for action. So what really happens to a bill before it is delivered to the Governor on act paper?

    First thing to know is that, pursuant to Rule 18 of the Joint Rules of the Senate and House of Representatives, “the enrolling clerk of the originating house and the Office of Legislative Legal Services shall coordinate and work together jointly to prepare the bill as passed in final form. The Office of Legislative Legal Services shall prepare the bill in the form in which it shall appear in the session laws. . . “. So over the years, the House and Senate enrolling rooms and the OLLS have developed a process that allows for the efficient preparation of the bills on act paper and the development of the Session Laws.

    Once the enrolling room receives a bill for enrolling into an act, they verify sponsors before delivering the bill to the Publications Team in the OLLS. But before they can even do that, they typically prioritize their other work to focus on engrossing bills as they pass on second and third reading, since those bills must be made available the same day they pass on the floor, and on preparing preamended bills that are reported out of committees so that those are available to legislators and the public as soon as possible.

    Once the Publications Team receives the bill for enrolling, they begin processing the bill by checking the bill for errors that may be fixed by correction schedule[1]. Then they input the bill’s information into the bill disposition tables and the Red Book, which is a tabulation of all C.R.S. sections affected by bills passed during the legislative session. The bill disposition tables and the Red Book are mandatory parts of the Session Laws, which are prepared by the OLLS following each legislative session as required by statute. By preparing the red book entries at this point, it allows the Publications Team to determine whether new statutory sections added in the bill need to be renumbered to make room for other new statutory sections added by other bills and which provisions need to be harmonized or superseded. This is the beginning of the steps in preparation of the Colorado Revised Statutes.

    Once the Publications Team finishes with the bill, they deliver it to the subject matter team in the OLLS that is responsible for the bill to prepare an advance unofficial copy. The subject matter team reviews the bill attachments for completeness and accuracy as a courtesy to the House and Senate front desks, then they verify which version of the bill should be enrolled, check the sponsors on the bill, input any conference committee report changes that were adopted, make sure all amendments that were passed appear in the bill, and check to ensure that no current law has been dropped and that all new language appears in capital letters. If they find grammatical or punctuation errors, they include those on the correction schedule before making any corrections in the copy. If the subject matter team is enrolling a bill during the legislative session, then other session-related work often takes priority, like bill and amendment preparation, so there could be delays.

    When the unofficial copy of a bill is ready, it is delivered to the enrolling room for proofing. Yep, the bill is proofed yet again even though it has been proofed after each reading during its travels to become a final act. The enrolling room also checks sponsorship of the bill and ensures that any corrections to the bill and any conference committee report that was adopted appear in the copy. Great care is taken to ensure that the bill is correctly enrolled.

    When the enrolling room completes their proofing, they deliver the bill to the Publications Team again; the Publications Team reviews it and determines whether further grammatical or punctuation corrections need to be made. The bill is then put on act paper by the subject matter team, subject to other priorities. The act paper copy, which is the version of the bill the Governor receives for signing, is then delivered to the appropriate enrolling room.

    Now that the enrolling room has the final act copy, they prepare a fancy bill jacket that goes along with the act to the Governor’s office. But before it goes to the Governor, there are a few more stops on a bill’s journey to the Governor’s desk. First, if it’s a House bill, it goes to the Speaker of the House of Representatives and Chief Clerk for their signatures and then to the President of the Senate and the Senate Secretary for their signatures. If it’s a Senate bill, the President and Senate Secretary get to sign first. And, of course, messages are prepared to notify the body that the bill was signed by the Speaker or President, if the legislative session is still in progress.

    So then, after all of that action takes place, the enrolling room contacts the Governor’s office and makes arrangements for someone to be physically present in the Governor’s office to sign for and receive the bill.

    And now you know what really happens before a bill lands on the Governor’s desk.

     

    ____________________________________________________________________

    [1] The correction schedule is a list of grammatical and punctuation errors that may appear in a bill, along with numbering changes required due to other bills amending the same section, which are automatically corrected when the bill is enrolled into an act.

  • Throwback Thursday – The Colfax Avenue Shootout

    Throwback Thursday – The Colfax Avenue Shootout

    by Patti Dahlberg

    DENVER, Dec. 18, 1922 – As a Federal Reserve Bank truck sat outside the U.S. Mint in Denver to pick up a weekly cash shipment for transport to various area banks, a black Buick touring car with drawn curtains slowly pulled up beside it. According to witnesses, three or four masked men jumped out of the car while one remained behind the wheel. One of the masked men ran to the rear of the reserve truck, yelled at the guards, fired at and fatally wounded the guard at the back of the truck, and shot out the back doors and windows of the truck. One man quickly lifted bags of money out of the truck and threw them into the Buick while the other masked men sprayed the Mint building exits and windows with bullets from sawed-off shotguns. Alarm bells clanged and Mint guards and employees grabbed rifles and began firing out windows and doors.

    Within seconds, bullets were peppering West Colfax Avenue, hitting the side of the Mint building and several other nearby buildings. According to the Dec. 19, 1922, New York Times:

    So terrific was the gunfire that forty bullet holes can be counted in the transoms above the main entrance to the mint and in the windows of the second story. Bullets riddled windows in various stores and apartment houses across the street and there were many narrow escapes from bullets. One shot went through a window in Sylvania Hotel, at Court Place and West Colfax Avenue, and shattered a picture on the wall.

    The shootout lasted only about ninety seconds before the getaway driver took off, ran another vehicle into a fire hydrant (adding to the confusion and mayhem), and sped away east on Colfax Avenue with an estimated $200,000 in $5 bills. Witnesses reported that while fleeing the scene, one of the bank robbers stood on the car’s running board[1], presumably to fire back at the Mint guards, but was instead shot and seriously wounded before being pulled back into the car.

    The entire event was over in five minutes. Charles T. Linton, who died in the shootout, is the only Federal Reserve guard to lose his life during a bank robbery. Hailed by many as the “wildest gun battle in Denver history,” the robbery was also reported by the Cheyenne Wells Record (December 21, 1922) to be the first successful Mint holdup in U.S. history and the largest robbery in Denver.

    In the aftermath of the robbery, witnesses came forward to help investigators with descriptions and drawings of the thieves and the number of robbers involved went from four to seven. Roads in and out of Denver were shut down and according to the New York Times: “Tonight every highway in the State is guarded and police and Federal authorities have armed squads out in pursuit of an automobile occupied by seven men who were seen speeding northward soon after the robbery. One of the occupants was bleeding profusely, having been wounded in the jaw by one of the mint guards, it is believed.”

    In the ensuing investigation, the robbers were tracked from Omaha to Chicago, then to St. Paul, before the trail went cold. Then on January 14, 1923, investigators discovered the getaway car in an old garage on Gilpin Street in Denver. Inside the car was a frozen body identified through fingerprints as Nicholas “Chaw Jimmie” Trainor, a.k.a. James Sloan. It was determined that Trainor had been mortally wounded during the robbery and his body left behind as the rest of the gang escaped. Once Trainor was identified, police suspected that Harvey Bailey, a known associate of Trainor’s, was likely to have been involved in the robbery. In spite of offering rewards of more than $10,000, none of the other robbers were positively identified. The discovery of the getaway car led investigators to other leads in the case including a trunk filled with firearms, ammunition, photographs, and letters.

    Secret Service agents recovered about $80,000 of the stolen mint money in a Minnesota hideout, along with $73,000 in negotiable bonds from an Ohio robbery. Since Trainor and Bailey were both considered suspects in that Ohio heist, which predated the Denver robbery, police became further convinced of Bailey’s involvement in the Mint robbery. According to the police, the thieves fled to the Minneapolis-St. Paul area with the money, which was given to a “prominent Minneapolis attorney.” Bailey fell off police radar in late 1922 and continued evading capture until his eventual arrest and conviction in 1933. He later died in 1979.

    In 1934, twelve years after the robbery, the remaining robbers were identified. The Denver Police Chief at the time, Albert T. Clark, released a statement announcing that five men, as well as two women, had colluded in the robbery. According to an article printed in California’s Healdsburg Tribune, Clark also disclosed that, of the individuals involved, only two remained alive, and both were serving life sentences for other crimes. The police added that the other members of the gang had died violently. According to the police, Harvey Bailey had driven the car and was serving a life-sentence in Alcatraz for the kidnapping of an Oklahoma City millionaire. James Clark was serving a life-sentence in the Indiana State Penitentiary for bank robbery. Other gang members, Harold Burns and Frank McFarland “The Memphis Kid” were dead. Nicholas Trainor/James Sloan had been found dead in the getaway car shortly after the robbery and the bullet-riddled body of his common-law wife, Florence Thompson, was found in 1927. Harold Burns’ wife, Margaret, was found shot and burned in 1932. The case of the Denver Mint robbery was considered closed without a single person ever charged in connection with the theft.

    Two earlier attempts to rob the Denver Mint fail

    The first attempt to rob the Denver Mint was a year or so after the Mint was established, when James D. Clark, a.k.a. Small Bad Jim, landed a job at the Mint. He kept it simple – stuff your pockets with as much as you can and get out of town fast. In February of 1864, he left work with $37,000 in gold and treasury notes. Reportedly, the gold bars were so heavy he started dropping them in the Cheesman Park area on his way out of town. When he was captured, officials recovered about $32,000, the remainder remained missing. After his arrest, Clark escaped from jail but was eventually rearrested, tried for his crime, and banished from the territory.

    The next attempt was in 1920 when Orville Harrington, also a Mint employee, attempted to steal gold bars by wrapping them in newspaper and stuffing them into the hollow shank of his wooden leg. He successfully smuggled out 40 gold bars, worth about $81,000, to his house and buried them in his yard. He was caught when a fellow employee witnessed him putting gold bars in his wooden leg. He was tried for his crime and sentenced to 10 years in prison.

    But before there was a Denver Mint —

    Printing your own money – the early days of the Colorado Frontier

    Founded in July 1860 by Austin M. Clark, Milton E. Clark, and E.H. Gruber, the Clark, Gruber & Co. Bank and Mint was located on the corner of 16th and Market, and served several functions, including bank, assayer’s office, and money factory. At the time, Denver was teeming with precious metals mined in the mountains and extracted in frontier smelting plants. While plenty of local businesses used bags of gold dust for currency, the demand for cash and coins remained high. Clark and Gruber’s private bank and mint gave prospectors a place to safely deposit their earnings and turn their precious metals into currency. The enterprise, which was legal, served an important role in keeping cash flowing on the streets of Denver and helped establish financial norms and standards within the community.

    Clark and Gruber’s operation proved to be very popular, generating more than $3 million worth of business in their first two years. A $10 gold piece from Clark and Gruber’s was regarded as a reliable form of currency that could be used locally and transported to other parts of the country without losing value.

    In 1862, Congress passed a bill that allowed the government to purchase Clark and Gruber’s operation and turn it into an official U.S. Mint, and in 1864, Congress passed a law banning private mints, ending the era of frontier money.

    ________________________________________________________

    [1] A long, narrow board that is attached to the side of a vehicle to make it easier for people to get in and out.

     

    Sources:

  • What Happens to a Statute Declared to be Unconstitutional?

    Editor’s note: This article was originally posted October 8, 2015.

    by Jennifer Gilroy and Michele Brown

    Several years ago, a librarian at the Sturm College of Law (at the University of Denver) called our office to ask what happens to a statute when it is declared by an appellate court to be unconstitutional. Perhaps he figured the revisor of statutes would simply and unceremoniously strike it from the books. Or maybe he thought that the legislature would automatically know and run a bill to repeal the offending provision of law. But it doesn’t exactly work that way. In fact, Colorado has several “unconstitutional” laws still on the books.

    To understand the reason for this phenomenon, it’s necessary to go back to basic 8th grade American Government class. State government, like the federal government, is split into three branches: The executive branch, the judicial branch, and the legislative branch. One cannot do the work of the others. While the executive branch may enforce the law and the judicial branch interpret the law, only the legislative branch may write the law or, in this case, repeal it. Therefore, despite the fact that the highest court in the land may have determined that a Colorado statute (or a section of the state constitution) is unconstitutional, only the legislature may take the statute off the books by bill. The constitution may only be amended—even if the amendment is to remove a provision declared to be unconstitutional—if the change is approved by a majority of voters voting on a ballot measure or on a measure referred to the voters by the General Assembly. The court cannot require the repeal.

    Legislators in the Colorado General Assembly may introduce only five bills during each regular legislative session. (See Joint Rule 24 (b)(1)(A)). As a result, many legislators who have so many things they want to accomplish during their brief, term-limited tenure at the state capitol may not want to “spend” one of their five bills on a housekeeping matter, as it were. Are you starting to see why some of these laws linger on the books long after they should? In fact, in Colorado dozens of statutory and constitutional provisions that have been held to be unconstitutional still remain on the books.

    How does the average reader of our laws, then, know whether a statute (or constitutional provision) is really “good law?” The General Assembly’s legal staff at the Office of Legislative Legal Services vigilantly reads all of the appellate opinions issued by the Colorado Court of Appeals, the Colorado Supreme Court, the United States District Court for the District of Colorado, the United States Court of Appeals for the 10th Circuit, and the United States Supreme Court looking for opinions construing Colorado’s law and, in particular, opinions declaring any provision of Colorado law unconstitutional. The Office’s legislative lawyers and legislative editors write brief summaries of every court’s holding that interprets a provision of Colorado law. These “annotations,” as they are called, are then published in the official Colorado Revised Statutes (also found online) immediately following the section of law that is the subject of the court’s ruling.

    If the court has actually determined that the provision of law is unconstitutional, the Legal Services staff will include a special editor’s note to that effect, which the reader will see immediately following the source note at the end of the section of law. The editor’s note notifies the reader that this provision has been held to be unconstitutional and provides the citation to the case so construing the law. The staff will also include an editor’s note if, for example, the U.S. Supreme Court has determined another state’s statute to be unconstitutional and that state’s statute is substantially similar to a Colorado statute. [For an example, see the editor’s note regarding an Arizona statute after §18-1.3-1201]

    But unless it’s reported in the news, how does a legislator know that one of Colorado’s laws has been found to be unconstitutional? Well, in addition to writing annotations and editor’s notes regarding the court’s holding, the Legal Services staff also provides the members of the state legislature with a quarterly report of recent judicial opinions of note. The Notice of Judicial Opinions provides the members with information about recently issued appellate court opinions construing Colorado law and, if any opinion addresses the constitutionality of a state law, it is highlighted in the report. Through this report, members of the legislature are notified that an appellate court has determined that a law on the books is unconstitutional and is therefore “ripe” for repeal. Finally, Legal Services staff also tweets about significant court rulings when they are released.

    The decision whether to sponsor a bill that would repeal an unconstitutional law is ultimately the decision of each individual legislator. Nevertheless, so long as an unconstitutional law remains on the books, the editor’s notes and the annotations will notify the reader of the court’s decision and, by extension, the status of the law.

  • Election Year Precautions – Part 2

    by Bob Lackner

    In our previous article on election year precautions, we looked at whether legislators may hold another public office. In this article, we’ll look at the use of state resources.

    Use of House and Senate legislative staff, equipment, and resources

    Perennial questions arise concerning the possible use of state equipment or state buildings and the use of staff time for political purposes, namely a member’s reelection efforts and related advocacy activities on behalf of the member’s political party or other candidates for partisan office. These questions naturally tend to be more pressing in election years when legislators are often pulled between their official legislative duties and critical political tasks necessary to ensure reelection for themselves or other candidates of their political party.

    There is not much law that provides clarity on most questions in this area. The most concrete guidance is a statute that prohibits, among other things, a state agency, including the General Assembly, from making any contribution in campaigns involving the nomination, retention, or election of any person to public office.[1] A violation of this section subjects the offender to sanctions including an order directing the person making the contribution to reimburse the fund of the state from which the moneys were diverted for the amount of the contribution.[2] Over the years, the Office of Legislative Legal Services (Office) has recommended that the wisest default position for legislators, partisan staff, and House and Senate employees is to avoid, to the greatest extent practicable, the use of Capitol office space, public resources, or staff time for political campaign activity of a partisan nature. Following this advice may avoid an ethics complaint being filed. We have come to publicize this advice in terms of the “Three Nos.” Specifically:

    • No Capitol space: With one limited exception as noted below, rooms in the Capitol building, including private offices, should not be used to carry out political campaign activity.
    • No equipment: State-funded equipment and other related resources for the use of members of the General Assembly and their staff in fulfilling their official duties, including desktop and laptop computers, tablets, telephones, fax machines, copier machines, paper products, office supplies, and internet connectivity, should not be used to carry out political campaign activity.
    • No staff: Staff for elected officials should not be using their time for which they are paid to assist the member in carrying out the member’s official legislative duties to carry out political campaign activity. Staff is permitted, however, to engage in political campaign activity in their free time while “off the clock”, outside the Capitol building, and without the use of state resources.

    With respect to the Capitol building, there has been an accepted practice over many years of legislators using photographs of the legislator from inside the building for use in campaign materials. A popular setting for the use of such a photograph is from the House or Senate floor. In more recent years, the photograph is often displayed on the candidate’s website or for use in social media. As long as the photograph does not include the state seal or the seal of either the State Senate or the State House of Representatives, this practice has been permitted as a narrow exception to the general rule against political activity within the state Capitol.

    Some of the other perennial questions in this area include:

    • May House or Senate legislative staff, equipment, or resources be used during regular business hours to arrange “town hall” meetings on behalf of a member of the General Assembly? Legislative staff, equipment, or resources may be used during regular business hours to arrange “town hall” meeting on behalf of a member of the General Assembly as long as the meeting relates exclusively to the legislator’s official duties—that is, legislation, a discussion of state issues, policymaking, etc.,—and the legislator or staff do not engage in political activity relating to the election of a candidate. Similarly, staff may use state equipment during business hours to communicate with constituents on legislative matters on behalf of members as long as the communications are not for campaign or political purposes.
    • May political literature be handed out at a town hall meeting held in connection with a member’s official duties? This practice is not advisable. If the town hall meeting is held for the purpose of communicating with the public about legislative business, it should not be coupled with any activity, such as handing out campaign literature, that suggests a political purpose.
    • May House or Senate legislative staff maintain a legislator’s website that is predominantly devoted to legislative activities but that also contains some content that could be characterized as political or campaign-related? Nevertheless, the member and staff should remain conscious of the fact that the line between what is legislative and what is political in the context of written or electronic communications oftentimes becomes blurred. Accordingly, when staff uses state time or resources to generate materials that appear, or might be construed, to be created or used for a campaign or political activity or purpose, the likelihood of a complaint is greater.

    May House or Senate partisan staff undertake political activity on the weekend or at night when the staff person may also be engaged in work on official legislative business? Yes. The boundary between time that may be spent on official legislative duties and time spent on political activity is essentially governed by the staff person’s official legislative work schedule. The staff person needs to refrain from undertaking political activity while on the legislative clock.

     

     

    [1] § 1-45-117 (1)(a)(I), C.R.S.

    [2] § 1-45-117 (4)(a), C.R.S.

  • Election Year Precautions – Part 1

    by Bob Lackner

    2022 is an election year, which means that most of the members of the General Assembly will be running for reelection (or sometimes another office). Running for office can become an all-consuming endeavor, which can cause legislators who are also candidates to forget or lose sight of some of the legal restrictions on legislators who may also be candidates. This article, the first in a two-part series, discusses whether legislators may hold another public office. The second part of this series will cover the use of state resources.

    Holding dual offices

    One issue members may confront during their tenure in the General Assembly is the ability to hold another public office at the same time they are serving in the General Assembly. Perhaps they were serving in another office when elected to the General Assembly and would like to continue in that role. Or, maybe an opportunity arises for a sitting member of the General Assembly to seek another state or local office.

    The Colorado Constitution provides that “[n]o senator or representative shall, while serving as such, be appointed to any civil office under this state; and no member of congress, or other person holding any office (except of attorney-at law, notary public, or in the militia) under the United States or this state, shall be a member of either house during his continuance in office.”[1] Colorado court decisions suggest the use of the following general guidelines in applying this constitutional section[2]:

    • During their term of office, no member of the General Assembly can be appointed to a civil office in state government.
    • Because the Colorado courts have not had occasion to specifically address the prohibition against holding other state elective office and because of separation of powers concerns and possible conflicts of interest, perceived or real, it is less clear whether a member of the General Assembly could simultaneously hold another elected office in state government.
    • It is clear that a member of the General Assembly may hold an elected or appointed office in a local government.
    • Legislators may also be employed by the state or a local government. An “appointment,” as contrasted with an “appointment to a civil office,” exists as long as the person is not required to exercise independent decision-making authority and is not entrusted with the sovereign power of the state.

    Although these guidelines indicate that a legislator may serve in certain other civil offices, most electors decide not to serve in other public offices during their tenure in the General Assembly because of the time demands of being a legislator, concerns about the possible appearance of a conflict of interest, and the need to abstain from voting when a conflict exists.[3] The potential exists for many potential conflicts of interest between votes and positions taken as a member of the General Assembly while simultaneously holding another public office. In evaluating whether to hold another public office while serving as a member of the General Assembly, it may be of benefit to consider the degree to which the state affects the other government’s activities and the potential for conflicts between the members’ roles. For example, there may be a higher likelihood of conflict between large cities and counties than for other types of governmental entities such as small (statutory) towns or special districts.

    On a related note, section 1-4-501 (2), C.R.S., prohibits any person from being an eligible candidate for more than one office at one time.[4] Therefore, assuming a member of the General Assembly is also permitted to hold an elected office in a local government, the legislator cannot run for a legislative seat and that other office in the same election.[5]

     

     

    [1] Colo. Const. Art. V,  § 8.

    [2]Carpenter v. People ex. El. Tilford, 8 Colo. 116, 5 P. 828 (1884) and Hudson v. Annear, 101 Colo. 551, 75 P. 2d 587 (1938). A civil office is an office in which its holder is required to take an official oath or to give bond. Hudson, 101 Colo. at 555-556, 75 P.2d at 588-589.

    [3] See Colo. Const. Art. V § 43 and § 24-18-107, C.R.S., and House Rule No. 21 (c) and Senate Rule No. 17 (c).

    [4] § 1-4-501 (2), C.R.S.

    [5] The material in this section of the article is taken from a memorandum from the Office of Legislative Legal Services to Interested Persons dated November 29, 2021, entitled “Legislators Holding Other Offices”.

  • Statutory Revision Committee Continues Scrubbing the Statutes

    by Jessica Wigent

    Since its (re)creation in 2016, the Statutory Revision Committee (SRC), codified in part 9 of article 3 of title 2, C.R.S., has introduced more than 100 bills that have repealed and refreshed Colorado’s laws, clearing conflicts, glitches, and outdated provisions from hundreds of pages of statutory text and bringing the Colorado Revised Statutes into the 21st century.

    During hearings held during the 2021 legislative session and, most recently, on February 11, 2022, committee members heard memo presentations and testimony on issues including:

    • Repealing the capitol dome restoration fund, as that capitol dome project, which you can climb up into, is complete, and the statute is now obsolete;
    • Repealing a tax credit that only applied in 1999 – when the first (we’re now on the fourth!) Matrix movie was in theaters;
    • Repealing two advisory committees whose work was completed or taken over by another agency; and
    • Making technical updates to the marijuana codes.

    Membership

    The SRC consists of eight legislators (two appointed by the majority and minority leadership in each house) and two nonlegislators who are nonvoting attorney members appointed by the Committee on Legal Services. Per the statute that created the SRC, the chair and vice-chair elected in the 2021 legislative session, Representative Valdez and Senator Kirkmeyer, have switched positions. The membership now includes:

    Senator Barbara Kirkmeyer, Chair

    Senator Donald Valdez, Vice-chair

    Representative Mike Lynch

    Senate Majority Leader Dominick Moreno

    Representative Andres Pico

    Representative Steven Woodrow

    Senator Rob Woodward

    Senator Rachel Zenzinger

    Patricia Ho, attorney, nonlegislative member

    Andrew Toft, attorney, nonlegislative member

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

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

    An affirmative vote from at least five of the legislative SRC members is needed to introduce proposed legislation, and the SRC regularly considers more draft bills than it approves. All proposed bill drafts, including those not approved for introduction, are publicly available on the SRC’s website and in the committee’s annual report submitted to the General Assembly. You may also email staff for more information.

    The SRC plans to meet again on Friday, March 11, at 7:30 a.m. in House Committee Room 112. Join the SRC mailing list to be notified when the agenda, memos, and draft bills are available for that meeting.

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

  • CCUSL Approves Several Uniform Acts for Introduction

    by Patti Dahlberg and Yelana Love

    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 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 August 25, 2021, December 3, 2021, and January 14, 2022, and approved seven uniform acts for introduction as commission bills during the 2022 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. Four of the uniform acts approved for introduction were ULC acts newly approved at the 2021 annual meeting and the other three acts were ULC-approved acts from prior years. The seven uniform acts approved for introduction in 2022 in Colorado are:

    Amendments to the Uniform Probate Code (2019). Colorado first enacted the Uniform Probate Code (UPC) in 1973 and then enacted various updates and additions throughout the years as the opportunity arose, most recently the 2008 UPC Amendments. The 2019 Amendments to the UPC continue to modernize the law by providing a more consistent formula for determining intestate shares within blended families and removing outdated terminology.

    Uniform Cohabitants’ Economic Remedies Act. States have no consistent approach for addressing whether and how cohabitants can enforce contract and equitable claims against each other when the relationship ends. This act does not create any special status for cohabitants. In most instances, it defers to other state law governing contracts and claims between individuals. The act enables cohabitants to exercise the usual rights of individual citizens of a state to contract and to maintain contract and equitable claims against others in appropriate circumstances. It affirms the capacity of each cohabitant to contract with the other and to maintain claims with respect to “contributions to the relationship” without regard to any intimate relationship that exists between them and without  requiring them to address issues that would not be faced by litigants of similar claims.

    Uniform College Athlete Name, Image, or Likeness Act. Until recently, college student athletes were not allowed to receive compensation for the use of their name, image, or likeness (NIL) while still maintaining eligibility. This act allows college athletes to earn compensation for the use of their NIL while also providing protections to educational institutions, athletic associations, and conferences. It provides a uniform framework for states to allow college athletes to earn compensation for the use of their NIL while maintaining a level playing field across state lines.

    Uniform Prevention of and Remedies for Human Trafficking Act (2013). This act provides three components to reduce human trafficking: comprehensive criminal penalties; protections for human-trafficking victims; and public awareness and prevention methods. Uniformity in this area may improve coordination and collaboration across state lines in the investigation and prosecution of human trafficking and would allow national and regional victim-advocates organizations to better advise and assist victims across the country.

    Uniform Restrictive Employment Agreement Act. This act regulates restrictive employment agreements, which are agreements that prohibit or limit an employee or other worker from working after the work relationship ends. The act addresses the enforceability of these agreements, notice and other procedural requirements, choice of law issues, and remedies. The act does not say anything about an agreement monitoring what a worker can or cannot do while employed.

    Uniform Unregulated Child Custody Transfer Act. In some cases, parents find that, after the birth or adoption of their child, they experience considerable difficulty or even inability in caring for or effectively managing the child’s behavior, which sometimes leads to families transferring custody of a child to another person without the involvement of the courts and the child welfare system. Without specific regulations directed at these types of unregulated transfers, a transfer of custody might go unnoticed within the child welfare system. This act addresses the transfer of children in these types of cases.

    Uniform Voidable Transactions Act (2014).  The amendments in the Uniform Voidable Transactions Act (UVTA) strengthen creditor protection by providing remedies for certain transactions by a debtor that are arguably unfair to the debtor’s creditors. The 2014 amendments to the UVTA address a small number of narrowly defined issues and are not a comprehensive revision of the act. Colorado adopted the original act, formerly known as the Uniform Fraudulent Transfer Act, in 1991.

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