Colorado LegiSource

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

Month: April 2023

  • Automatic Rule Changes During the Last Days of Session

     Editor’s note: This article was originally posted on April 18, 2019. This version has been updated where appropriate.

    by Julie Pelegrin

    On May 9, legislators, legislative staff, lobbyists, and capitol reporters can all hit the snooze button and roll over for another hour of sleep. But between now and then, there are several amendments to read, bills to consider, and differences to resolve. To help ensure that both houses can complete their work by midnight on May 8, the legislative rules automatically speed up or suspend certain procedural requirements in the last few days of the session.

    Last 5 Days of Session:

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

    Last 3 Days of Session:

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

    Last 2 Days of Session:

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

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

    Digest of Bills

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

  • Freedom of Speech for the New Legislator

    Freedom of Speech for the New Legislator

    by Esther van Mourik and Pierce Lively

    Editor’s note: This article was originally published on January 17, 2019.

    It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” – Supreme Court Justice Hugo Black

    He has the backbone of a chocolate éclair.” – President Theodore Roosevelt on President William McKinley.

    You’ve just been sworn in to serve as a legislative member of the Colorado General Assembly[1] and you are now a public official. Congratulations! If you would like to know your rights as a legislator when you’re being criticized by the public, when you’re making speeches, or when you’re being threatened, read on!

    It is a foundational principle that the success of a democracy is built on the back of free political discussion. This discussion is a fundamental right protected by the First Amendment of the United States Constitution and article II, section 10 of the Colorado Constitution. But freedom of speech is not absolute. For example, it does not protect a person who shouts “fire!” in a crowded theater and causes a panic. Over the years the judiciary has justified regulating speech when the restriction outweighs the value of the expression. So, where is the line drawn? In particular, when is speech directed toward, or made by, a legislator protected and when is it not?

    Speech directed toward a public official

    Let’s say that a critic has publicly said you are “ripping off taxpayers” by sponsoring a tax credit for businesses. Do you have a complaint against that critic for defamation? Probably not.

    Defamation is a catch-all term for civil, not criminal, damage claims stemming from false statements that hurt someone’s reputation.[2] Defamation laws are an important recourse for those who are harmed by false statements. However, defamation laws are in direct conflict with the constitutional right to free speech, and consequently, courts look at punishing that speech very carefully. This conflict is particularly acute in the case of public officials, such as legislators, because robust political debates and discussions are fundamental to our democratic system and should not be chilled.

    In New York Times v. Sullivan, the United States Supreme Court addressed this conflict by holding that the First Amendment’s right to free speech prohibits a “public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

    What does this mean for public officials, including legislators, in Colorado? A public official can only recover damages for a statement if he or she can prove that (1) a person published or otherwise communicated the statement to a third party, (2) the statement caused the public official actual damage, and (3) that when the person made the statement, he or she either knew it was false or had a reckless disregard as to whether it was false. This “actual malice” standard imposes a high burden on public officials in a defamation case.

    So, when a critic has publicly said you are “ripping off taxpayers” because you sponsored a tax credit for businesses, this may hurt your reputation, but it is probably not defamation. The critic is entitled to his or her opinion, and opinions are hard to prove true or false.

    Speech made by a legislator

    An “unrestricted debate of public issues” requires protecting not only a public official’s critics, but also protecting the public official. As regular readers of LegiSource will already know, this protection is achieved through “legislative immunity.”[3]

    Let’s say you make a statement during legislative debate that offends someone. Is your speech protected? Yes. The Colorado Constitution includes protections to ensure that you can do your job as a public official without interference or intimidation.

    Under Article V, section 16 of the Colorado Constitution, legislators are immune from civil lawsuits and state criminal prosecution for actions that fall within the “sphere of legitimate legislative activity.”[4] Although Colorado courts have not defined the phrase “sphere of legitimate legislative activity,” in Gravel v. United States, the United States Supreme Court held that activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House” are within the sphere.

    In general, these activities include conducting hearings, preparing and authorizing the publication of reports, delivering floor speeches, and voting but do not include meeting with or influencing executive branch or local government officials or political activities related to campaigning.

    When a constituent is offended by something you said during legislative debate about a particular bill, your speech is protected, and you are immune from any liability related to that speech.

    When speech turns criminal

    Legislative immunity protects legislators and the high burden in defamation cases protects critics of the government, but no one is protected while threatening others. Actions that constitute criminally threatening behavior include:

    • Attempting to influence legislators and other public servants through “deceit or by threat of violence or economic reprisal”;[5]
    • Threatening or using physical action to place another “in fear of imminent serious bodily injury”;[6]
    • A continuous course of conduct where one follows, approaches, contacts, places another under surveillance, or communicates with someone in a manner that causes that person to suffer serious emotional distress;[7] and
    • Harassment.[8]

    If you feel threatened in any way while in the capitol, call state patrol (303-866-3660). If you feel threatened outside of the capitol call local law enforcement. If you think the person threatening you away from the capitol may come to the capitol, please call state patrol.

    Final thoughts

    As you embark on your new careers as members of the General Assembly, it’s important to remember that open and robust discussion of public issues is a fundamental part of our democracy. Our laws strive to protect discussion both by critics of the government and the government itself. Critics of the government are protected by requiring public officials to clear a high bar before they succeed in defamation cases. Legislative immunity protects members of the government in relation to statements they make within “the sphere of legitimate legislative activity.” But expression that improperly influences, threatens, or harasses a person is illegal and unprotected. If you have any further questions about any of these issues, please contact the Office of Legislative Legal Services.

     

    [1] Or maybe you’re already a legislator and you just want a refresher!

    [2] If defamation is written, it is libel, and if it is spoken, it is slander.

    [3] See Legislative Ethics – Legislative Immunity and A Look at the Limits of Legislative Immunity.

    [4] For an in-depth discussion of how this doctrine applies to subpoenas, see To Testify or Not to Testify: Responding to a Subpoena.

    [5] Section 18-8-306, C.R.S.

    [6] Section 18-3-206, C.R.S.

    [7] Section 18-3-602, C.R.S.

    [8] Section 18-9-111, C.R.S.

  • What happens when multiple bills amend the same provision of law?

    What happens when multiple bills amend the same provision of law?

     by Bethanie Pack

    Editor’s note: This article was originally posted on March 15, 2019. It has been updated where appropriate.

    It’s very common for multiple bills to amend the same provision of law in a given session, because let’s face it, great minds think alike, and there are a lot of great minds in our state legislature. So, when this occurs, one of five things can happen:

    1. The bills are harmonized upon publishing;
    2. Provisions are renumbered;
    3. The bills are amended without need of a conflict letter from the Revisor of Statutes;
    4. The Revisor of Statutes issues a conflict letter to the bill sponsors of both bills notifying them of the conflict and that their drafters can provide guidance to the bill sponsor on how to address it; or
    5. As a last resort, one of the bills supersedes the other.

    So what in the world does all this mean? Let me explain.

    After a bill passes second reading in each house, the publications team (a team in the Office of Legislative Legal Services that works under the direction and supervision of the Revisor of Statutes) performs a database search against all other bills in the current legislative session to ensure no bills change the same provision of law in a conflicting manner.

    Harmonize

    If only Bill A and Bill C are adopted, then the publications team can harmonize the section upon publication, and there is no conflict. In other words, the two bills “play nice together.” The section would appear as:

    45-1-101. Residential watering. A homeowner may water the lawn for a maximum of one hour up to five times per week.

    The changes from both bills can be combined in this section and they can be harmonized.

    Renumber/Reletter

    Now, ignore Bills A, B, and C for a moment, and take as an example two bills that both add a subsection (2) to the current version of 45-1-101. If both bills pass, one of them will be renumbered to add a subsection (3).

     Conflict Letter

    Back to our original example.  If both Bill A and Bill B were to pass, they cannot be harmonized; there is a conflict. The section of law cannot state that a homeowner may water the lawn both three and five times per week. In this scenario, the Revisor of Statutes writes a conflict letter, as directed by Joint Rule 16, to give notice of conflicting provisions to the prime sponsors of the conflicting bills.

    These letters are sent to the prime sponsors and the conflict is noted in the transmittal letter sent to the opposite house after third reading in the first house. A copy of the letter is also stapled to the billback. The letter contains a statement about the conflict and a statement that the bill drafters know about the conflict and can provide guidance on how to address the issue.

    The publications team runs the conflict check after second reading in each house, which sometimes gives the drafter enough time to confer with the prime sponsor and draft a third reading amendment to fix the conflict. This quick action by the drafter would eliminate the need for a conflict letter before the bill is transmitted to the opposite house.

    Typical resolutions to conflicts by amendment include mirroring the language in both bills to make them harmonizable, making the conflicting provision in one bill contingent on the passage of the other bill so that both provisions don’t go into effect, or eliminating the conflicting provision or moving it to a different place in statute. But sometimes, none of these approaches will work because the bill sponsors don’t agree to the amendments that would harmonize the bills or because harmonizing the bills would defeat the purposes of the bills. In these situations, the legislators may decide to allow one bill to supersede the other.

    Supersede

    The goal of the publications team is to give effect to every bill. So, allowing one provision of law to supersede another is the last resort and done only if an amendment to fix the issue was not adopted. If two bills pass that cannot be harmonized, renumbered, or relettered, and they were not amended to “play nice together,” then one bill will supersede the other where the conflicting provision occurs. Which provision takes effect is typically based on the effective dates of the bills—the amendment with the later effective date prevails. Occasionally two conflicting bills will have the same effective date, in which case the provision that prevails is the one in the bill that the Governor signs last. In some cases, however, the bill with the earlier effective date will prevail because it repeals the provision. A bill that repeals a provision will supersede a bill that amends the same provision, even if the amending bill has a later effective date, because the repealed provision is gone by the time the amending provision takes effect, and it cannot be brought back to life to implement the amendment.

    For more information on effective dates, see “When Does an Act become a Law? It depends.”