Colorado LegiSource

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

Month: April 2024

  • Automatic Rule Changes During the Last Days of Session

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

    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 10 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. 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 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 10 days of session, however, a Representative may offer a substantial amendment to a bill on third reading.
    • 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 10 days of session, a member need not give notice of intention to reconsider.
    • House Rule 35 (b) and (e): A motion to reconsider usually requires a 2/3 vote to pass. In the last 10 days of session, however, a motion to reconsider—whether in a House committee or in the full House—requires only a majority vote.
    • House Rule 36 (d):  The House can consider the amendments made in the Senate without waiting for the members of the 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): Legislators can vote on a conference committee report once the report is turned in to the front desk—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.

    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 the last five days of session.

    Last 3 Days of Session:

    • Senate Rule 26 (a): The Senate can consider the amendments made in the House without waiting for the members of the Senate to receive a copy of the rerevised bill and for the notice of consideration to be printed in the calendar.
    • Senate Rule 26 (b): Legislators can vote on a conference committee report once the report is turned in to the front desk—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.
    • 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.

    Before the 118th legislative day, the President of the Senate may announce that the Senate is in the last three days of the legislative session. This does not mean that the Senate will adjourn sine die before the 120th legislative day, but it does trigger the rule changes that apply in the last three days of session. By contrast, it’s unlikely that the Speaker of the House will announce that the House is in the last 10 days of the legislative session before the 111th day. It’s more likely that on April 29th—the 111th legislative day—she will announce that the House is in the last 10 days of the legislative session. This announcement will remind the members of the House of the end-of-session procedural rule changes they approved earlier in the session by the adoption of House Resolution 24-1004.

    Digest of Bills

    With these expedited procedures, bills will likely 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, organized by subject matter, of each bill enacted during the legislative session. 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.

  • Colorado’s Capitals

    by Sarah Meisch

    Colorado City as the capital of Colorado, or Golden? Residents may be surprised to learn that Denver has not always been the capital city of Colorado. In fact, these three cities have each been chosen as the capital throughout Colorado’s state and territorial history—all within the course of seven years.

    In 1861, the first Territorial Legislative Assembly (Assembly) of the newly established Colorado Territory was tasked with determining the location of the Colorado territorial capital. Before 1861, Colorado was included in the Kansas Territory, with the territorial capital located in eastern Kansas. The new territorial capital of Colorado was determined that fall during an Assembly meeting on G and Larimer Streets in Denver. The Assembly chose Colorado City, which is today part of Colorado Springs after its voluntary annexation in 1917.

    Colorado City was a small settlement, briefly known as El Dorado, created in 1859. It was the first lasting town within the Pikes Peak area. Colorado City was more centrally located than Denver in the Colorado Territory and, at the time, was the main line to Ute Pass, making it an easy supply stop for miners and settlers coming from the central Plains, such as Kansas or Missouri. Alternatively, northern settlers coming from Wyoming and Nebraska traveled through Denver and those coming from the southern states mostly came up through Pueblo. Many investors were interested in the location of Colorado City, which also may have influenced the decision to put the territorial capital there.

    The second meeting of the Assembly in Colorado City, in July 1862, would be the first and last legislative session with the town as the capital. The lack of accommodations and facilities made the town a challenging, uncomfortable place for legislators to convene.[1] With no Capitol building or accommodations to create a home base, legislators would ride on horseback to the area and sleep on the ground when they reached Colorado City before meetings with other members of the Assembly. There wasn’t “even paper or pen” for notetaking.[2]

    Today, there is a false front log cabin in Colorado Springs that supposedly represents the building where the Assembly convened, but according to historical sources, this site was only a place where legislators informally conversed. Their true meeting locations were the Francisco House for the Senate and Lucy Maggard’s boarding house for the House of Representatives. The working environment, which was sparse and ill-equipped, sparked frustration, and only four days after meeting, the members chose to reconvene in Denver instead. 

    The Assembly quickly decided that the next capital should be Golden. Founded in 1859, the City of Golden was the official capital of the Colorado Territory between 1862 and 1867. However, the Assembly met in both Golden and Denver, then known as Denver City, during this time. Denver City, founded in 1858 (named after the Kansas Territorial Governor James Denver), was a more bustling town than Colorado City, while Golden was a manufacturing hub with nearby access to booming mining towns and camps. Golden’s thriving miner-friendly location made it a more comfortable town to convene in than Colorado City had been. 

    William Loveland, an influential legislator and local businessman in Golden, offered his store up to the Assembly as a place to meet. He encouraged members “to come to the store to accept new suits of clothes, the ones they were wearing being in bad shape from so much traveling.”[3] The Assembly met in the Loveland Building many times during Golden’s time as capital. However, working without a permanent Capitol building meant that whenever the members wanted to convene, archives and furniture were carted across the Front Range and foothills by wagon to the meeting location. Many in the public and press saw this as a shabby affair, beneath the dignity of an official legislature, and ultimately the Assembly only met in Golden five times, often adjourning to Denver.

    For a week in December 1867, while meeting in Golden, the Assembly sparred over where the capital should be, debating between Denver and Golden. The mountain faction, representing miners and anti-Denver sentiment, steadfastly defended Golden as the proper seat of government. In the end, the Denver faction won by a single vote, and the mountain faction suspected bribery, potentially over the railroad interests at stake. Opposition to the capital move to Denver sparked a spirited article war in local newspapers, The Colorado Transcript (Golden) and The Rocky Mountain News (Denver), with The Colorado Transcript hinting that votes for Denver were based on corruption. 

    On December 9, 1867, the Assembly officially passed the act making Denver the capital city of the Colorado Territory, with the condition that Denver donate the land where the Capitol building would be built. Three territorial commissioners were appointed to select a site for the Capitol within 60 days of their appointment. The land needed to contain at least ten acres and be given to the Colorado Territory at no cost. Land fitting this description was donated in 1868 by carpenter and ambitious businessman, Henry Cordes Brown, who had originally bought the land for $12.50. However, by 1875, the Capitol had not yet been built and members were still meeting in “rented rooms and warehouses.” When Colorado became a state in 1876, there was no guarantee Denver would remain the capital, and tensions were mounting across the state. It made little sense to build an expensive Capitol building in downtown Denver if the state capital would be located somewhere else. The lack of construction on the land in Capitol Hill made Brown increasingly unsettled, and in 1879 he filed a deed of revocation to reclaim the land. Brown’s legal battle lasted seven years, making its way to the United States Supreme Court in both 1882 and 1886. The Supreme Court ruled for Colorado, and Brown’s bitterness toward the situation led him to later boycott attending the dedication of the building on July 4, 1890. 

    It was not until 1881 that Denver, no longer Denver City, was made the official state capital by a statewide referendum. Cities like Colorado Springs, Pueblo, and Canon City were considered, but after over 45,000 votes were counted, Denver received an easy majority of the vote. Construction on the current Capitol building began in 1886, and the Colorado state legislature did not meet in the Capitol until 1895.

    So it is that Denver is the last of the territorial capitals in Colorado and the only state capital we have known. Denver grew into a major city, and the Colorado State Capitol has become a symbol of permanency and elegance for Colorado’s legislators and civilians alike.

    See also https://legisource.net/2018/08/02/colorados-capitol-building-started-150-years-ago-with-a-land-donation-thank-you-mr-brown/

    [1] If the legislators had met in August 1862 instead of July, there would have been adequate lodging for the legislators, according to the Old Colorado Historical Society.

    [2] Coel, The Pride of Our People, page 3.

    [3] Ibid.

    References

  • U.S. Supreme Court Extends First Amendment Rights While Limiting Colorado Law on Stalking

    by Alana Rosen

    Counterman v. Colorado, 600 U.S. 66 (2023).

    On June 27, 2023, the U.S. Supreme Court issued a decision on Counterman v. Colorado, a case focused on a Colorado stalking law that prohibits repeated communications that would cause a reasonable person to suffer serious emotional distress and that do, in fact, cause a person to suffer emotional stress.[1] The U.S. Supreme Court overturned a Colorado man’s conviction for stalking a local musician, saying the state did not sufficiently establish the defendant’s actions as a “true threat” to the victim. 

    In this case, from 2014 to 2016, Billy Counterman sent hundreds of Facebook messages to C.W., a Colorado musician. The two had never met and C.W. never responded to Counterman’s messages. C.W. tried to block Counterman but he created a new Facebook account each time and continued contacting C.W. Some of Counterman’s messages contemplated violent harm befalling C.W., which put her in a constant state of fear and anxiety, affecting her day-to-day life. C.W. stopped walking alone and attending social engagements. She also canceled music performances, causing financial strain. Eventually, C.W. contacted law enforcement. In 2016, Counterman was arrested and charged with one count of stalking (credible threat), one count of stalking (serious emotional distress), and one count of harassment.

    Counterman moved to dismiss the charges on First Amendment grounds, arguing that his messages were not “true threats” pursuant to section 18-3-602 (1)(c), C.R.S. The trial court decided, however, Counterman’s statements did rise to the level of a “true threat” and ruled that the First Amendment posed no bar to prosecution. The trial court sent the case to a jury, which found Counterman guilty and sentenced him to four-and-a-half years in prison. On appeal, the Colorado Court of Appeals affirmed the conviction. The Colorado Supreme Court subsequently declined to review the case.

    The U.S. Supreme Court decided to hear the case because courts have been divided on whether the First Amendment requires proof of a defendant’s mindset in “true threat” cases. This is known as a “mens rea“ standard.[2] 

    In a 7-2 decision, Justice Kagan authored the majority opinion. She stated that while the First Amendment protects freedom of speech, there are a few limited, “historic and traditional categories” of speech—incitement, defamation, and obscenity—that are not protected.[3] “‘True threats’ of violence” Justice Kagan stated, are “serious expression[s] conveying that a speaker means ‘to commit an act of unlawful violence.’” The Court noted that in previous cases, the Court has stated that the existence of a threat depends on the recipient’s perception and not the speaker’s intent.

    The Court acknowledged that the First Amendment may still demand a true threat to be subject to a subjective mental-state requirement that may shield some true threats from liability. In her concurrence, Justice Sotomayor stated that society’s discourse occurs more frequently on the Internet, specifically on social media. The rapid changes to communication and information transmission has changed what society accepts as acceptable behavior. Justice Sotomayor went on to say that online communication can lack context clues, such as who is speaking, the tone of voice, and expression. She noted that without sufficient protection for unintentionally threatening speech, comments made in the heat of the moment online could lead to criminal prosecution.

    Justice Kagan noted the reason the First Amendment may demand a subjective mental state requirement relates to what is known as a “chilling effect on speech.” The Court further reasoned that a prohibition on speech may result in self-censorship of speech. One tool to prevent that outcome is to require the State to establish that a defendant acted with a culpable mental state. The Court recognized that this requirement comes at the cost of shielding threatening speech when the State cannot prove what a defendant thought. However, doing so reduces the prospect of chilling fully protected expression. The Court recognized that even though a culpable mental state may lessen the chill of protected speech, it makes prosecution of certain types of communications harder. To balance these two concerns, the Court considered the appropriate mens rea standard to apply.

    The Court held that among mens rea standards, a determination of recklessness offers a suitable standard. Recklessness is morally culpable conduct involving a “deliberate decision to endanger another.” The Court stated that in a “true threat,” a speaker is aware that others could regard their statements as threatening violence and but delivers the statements anyway.

    The Court held that in Counterman’s case, the Colorado district court failed to consider Counterman’s understanding of his statements as threatening, and in doing so violated Counterman’s First Amendment rights. The Court therefore vacated the judgment of the Colorado Court of Appeals and remanded the case back to the Colorado district court for further proceedings consistent with the Court’s opinion.

    [1] Section 18-3-602 (1)(c), C.R.S.

    [2] Mens rea is the state of mind statutorily required to convict a defendant of a particular crime.

    [3] Justice Kagan was joined by Chief Justice Roberts, and Justices Alito, Kavanaugh, Jackson, Sotomayor, and Gorsuch. Justice Sotomayor and Justice Gorsuch concurred in part and concurred in the judgement. Justices Thomas and Barrett dissented.