Colorado LegiSource

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

Year: 2024

  • What Happens to a Statute Declared to be Unconstitutional?

    Editor’s note: This article was last posted April 7, 2022 and has been updated as needed.

    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 an appellate court declares it 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 be amended—even if the amendment is to remove a provision declared to be unconstitutional—only 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 courts have 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 in 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, 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 to 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.

  • Colorado Voters Have 14 Ballot Measures to Approve or Reject This Year

    Colorado Voters Have 14 Ballot Measures to Approve or Reject This Year

    by Patti Dahlberg

    As Colorado’s registered voters will be receiving ballots for the November election within the next couple of weeks, this is an appropriate time to start looking at some of the many questions that will be on that ballot. This election is about more than just the presidential election; voters will also decide who fills the normal state and local offices and the fate of 14 statewide ballot measures.

    You may want to open your ballot as soon as you receive it and start researching names and issues. Early voting starts on October 21, and all ballots must be turned in by 7 p.m. on November 5.

    In the meantime, you’ll find the 14 statewide ballot measures demanding your attention listed below, along with a brief description of each measure. A far better resource for ballot information is, of course, the State Ballot Information Booklet, more commonly referred to as the “Blue Book.” The Blue Book is mailed to each registered-voter household, and that mailing has begun, so voters should start finding the Blue Book in their mailboxes any day now. Additionally, voters can access the electronic Blue Book on the General Assembly’s website.

    The Blue Book is prepared by Legislative Council Staff and includes an analysis of each ballot measure. Each analysis consists of a summary of the measure, a brief fiscal assessment of the measure’s costs, an explanation of what a “yes” or “no” vote means, how the measure changes the law, major arguments for and against the measure, and sometimes, some background or history of the law behind the measure. In short, the Blue Book hopefully provides enough information to help voters understand each measure’s purpose and effect.

    Amendment G – Modify Property Tax Exemption for Veterans with Disabilities. This measure would amend the Colorado Constitution to extend the current homestead exemption for veterans with a 100% permanent disability to include veterans who are unable to work a steady job that supports them financially because of a service-connected disability, as determined by the US Department of Veterans Affairs. (Link to ballot analysis.)

    Amendment H – Judicial Discipline Procedures and Confidentiality. This measure would amend the Colorado Constitution to create a board consisting of four district court judges, four attorneys, and four citizens that would preside over ethical misconduct hearings involving, and impose sanctions for misconduct by, judges. (Link to ballot analysis.)

    Amendment I – Constitutional Bail Exception for First Degree Murder. This measure would amend the Colorado Constitution to restore the ability of judges to deny bail in first degree murder cases when proof is evident or the presumption is great that the person committed the crime. (Link to ballot analysis.)

    Amendment J – Repealing the Definition of Marriage in the Constitution. This measure would amend the Colorado Constitution to repeal the language defining that only a union of one man and one woman is a valid or recognized marriage in Colorado. (Link to ballot analysis.)

    Amendment K – Modify Constitutional Election Deadlines. This measure would amend the Colorado Constitution to move up by one week the deadline for submitting signatures for initiative and referendum petitions and for judges to file declarations of intent to seek another term. The measure would also require the content of ballot measures to be published in local newspapers 30 days earlier than under current law. (Link to ballot analysis.)

    Amendment 79 – Constitutional Right to Abortion. This measure would amend the Colorado Constitution to make abortion a constitutional right in Colorado and prohibit state and local governments from denying, impeding, or discriminating against exercising that right. The measure would also repeal the existing constitutional ban on state and local government funding for abortion services. (Link to ballot analysis.)

    Amendment 80 – Constitutional Right to School Choice. This measure would amend the Colorado Constitution to create the right to school choice for children in kindergarten through twelfth grade and the right for parents to direct the education of their children. The measure would define school choice to include public neighborhood and charter schools, private schools, home schools, open enrollment options, and future innovations in education. (Link to ballot analysis.)

    Proposition JJ – Retain Additional Sports Betting Tax Revenue. This measure would amend the Colorado Revised Statutes to allow the state to keep sports betting tax revenue above the amount previously approved by voters and to use this money for water projects instead of refunding it to casinos and sports betting operators. (Link to ballot analysis.)

    Proposition KK – Firearms and Ammunition Excise Tax. This measure would amend the Colorado Revised Statutes to create a new state tax on firearms sellers equal to 6.5% of their sales of firearms, firearm parts, and ammunition. This new tax revenue would be exempt from the state’s revenue limit as a voter-approved revenue change and would be used to fund crime victim support services, mental health services for veterans and youth, and school safety programs. (Link to ballot analysis.)

    Proposition 127 – Prohibit Bobcat, Lynx, and Mountain Lion Hunting. This measure would amend the Colorado Revised Statutes to prohibit the hunting or trapping of bobcats, lynx, and mountain lions, except under certain circumstances, and establish penalties for violations. (Link to ballot analysis.)

    Proposition 128 – Parole Eligibility for Crimes of Violence. This measure would amend the Colorado Revised Statutes to increase the amount of prison time a person convicted of certain violent crimes must serve before becoming eligible for discretionary parole or for earned time reductions and to make a person convicted of a third violent crime ineligible for discretionary parole or earned time reductions. (Link to ballot analysis.)

    Proposition 129 – Establishing Veterinary Professional Associates. This measure would amend the Colorado Revised Statutes to create a state-regulated profession of “veterinary professional associate” in the field of veterinary care and outline the education and qualifications required for this position. (Link to ballot analysis.)

    Proposition 130 – Funding for Law Enforcement. This measure would amend the Colorado Revised Statutes to direct the state to spend $350 million to help recruit, train, and retain local law enforcement officers and provide additional benefits to families of officers killed in the line of duty. (Link to ballot analysis.)

    Proposition 131 – Establishing All-Candidate Primary and Ranked Choice Voting. This measure would amend the Colorado Revised Statutes to create an all-candidate primary election for certain state and federal offices, where the top four candidates would advance to the general election. Additionally, in the general election, voters would be allowed to rank those candidates in order of preference, and the votes would be counted over multiple rounds to determine the winner. (Link to ballot analysis.)

    Additional information on Blue Books and the Blue Book process can be found on the General Assembly’s website and in this 2020 LegiSource article. You can also find information on the ballot proposals filed by citizens (initiatives) on the Secretary of State’s Initiative Filings page.

  • If you build it, it will get used (and used and used)

    by Patti Dahlberg and Jessica Chapman

    CDOT – So What Do They Do?

    The Colorado Department of Transportation (CDOT) has been around in some form or another since 1910—its inception was roughly parallel to the increasing availability of automobiles in the state. In a previous LegiSource article, we explored the history and transformation of the department over the years and its role in building Colorado’s roadway system. But what is the department doing for Colorado transportation now? Maybe a better question is what isn’t the Colorado Department of Transportation doing?

    Overview

    The department’s prime directive is to ensure that Colorado has a safe and efficient transportation system by building and maintaining state and federal highways (not local and residential roads, which are the responsibility of cities and counties). Of the department’s budget (which totals over $1.7 billion for FY 2024-25), 58% is used just to maintain the current system of roads in the state.

    In order to ensure safe, efficient roads, the department provides three main services:

    • snow and ice operations;
    • roadway maintenance and preservation; and
    • construction management.

    To enhance public safety, CDOT provides:

    • traffic monitoring;
    • avalanche control;
    • rockfall mitigation;
    • mudslide clean-up and mitigation;
    • transit development and grants; and
    • traffic safety education.

    Some Specifics

    Emergency Response. One example of CDOT’s valuable service to the state involves its response to the mudslides, caused by heavy rain in July 2021, that closed I-70 through Glenwood Canyon for more than two weeks. CDOT employees were immediately on-site to assess the damage, help trapped motorists, and put in place an emergency plan for clean-up and repair.

    Multi-year Projects. CDOT also undertakes many multi-year projects at any given time. Currently, the department is working to expand I-25 from Mead to Berthoud. Once this project is completed it will be the first time there will be more than two lanes on I-25 from Denver to Fort Collins in both directions. Other highway projects include the I-70 Floyd Hill project, I-70 mountain corridor project, I-76 York to Dahlia bridge reconstructions, and improvements to U.S. 85 (Santa Fe Drive). In addition, there is always the normal ongoing work of resurfacing streets; replacing traffic signals; constructing retaining walls, curbs, and bridge safety work; installing wildlife fencing; improving on-ramps; and relocating bike trails throughout the state to keep CDOT busy.

    Quite simply, CDOT helps Colorado motorists (as well as planes, trains, and buses) get where they need to go in rain, snow, or shine. There are no breaks for the maintenance and response crews—they are called out day and night, weekends, and holidays to highway accidents and road repairs.

    Thinking Outside the Box

    And if road maintenance and repair isn’t enough, CDOT, in collaboration with the Town of Frisco and the Department of Local Affairs, developed a plan to build single-family homes and apartments in Frisco to provide affordable housing for mountain-based employees. Making mountain housing more accessible will allow CDOT to recruit more employees and keep essential snowplow operators and other road maintenance specialists closer to the areas where they are needed.

    CDOT also boasts a Division of Aeronautics, a Division of Transit and Rail, regional bus service and environmental and research services. They even have an Archaeology and History department and a paleontologist on staff!  CDOT has been involved with the planning for establishing rail service through northwest Colorado and working with the Front Range Passenger Rail District on providing service along the Front Range, from Pueblo to Fort Collins and eventually to Wyoming and New Mexico. The recent enactment of Senate Bill 24-184 along with the availability of federal transportation money is expected to help fund these projects.

    Public Service. CDOT doesn’t just take care of the roads. It also plays an active role in trying to keep travelers informed on road conditions and even provides estimated travel times to help motorists make informed decisions. Their website houses extensive information on its programs, projects, and goals, as well as road and weather conditions (easily accessed through www.cotrip.org or by calling 511). Construction reports are available through the Travel page. For information about safety initiatives, visit the Safety page. You can also get general information about Express Lanes. And they even have their own YouTube channel.

    Planning for the Future

    Good transportation systems require a solid transportation planning process. Colorado’s transportation planning process includes the development of a Statewide Transportation Plan, Regional Transportation Plans, and a Statewide Transportation Improvement Program. The planning process goes through several levels of planning and routinely invites public involvement.

    • Regional Transportation Plans. The department gathers input from 15 planning regionsto develop regional transportation plans for each region. These plans typically establish long-term transportation investment priorities and are consolidated and incorporated in the Statewide Transportation Plan. 
    • Statewide Transportation Plan. State law requires that the department produce a 20-year plan and update it every few years. The current Statewide Transportation Plan (2045)estimates the state’s needs and revenue for the years 2016 to 2045.  The plan outlines funding, anticipated future transportation needs, and strategies to achieve its goals. 
    • Statewide Transportation Improvement Program. Federal regulations require the state to produce a Statewide Transportation Improvement Program (STIP).This is a 4‑year planning document for state transportation projects which CDOT updates annually. Projects included in the annual plans come from the 20-year statewide transportation plan. 

    CDOT also takes climate change into account in its planning process. For example, a rule change in 2021 requires transportation projects demonstrate that potential greenhouse gas emissions from the project not exceed certain limits.

    There’s no doubt about it, Colorado has a mobile society and transportation impacts its citizens—residents and visitors alike—on a daily basis.

    Sources:

  • What’s So Special About a Special Session?

    Editor’s note: This article was originally posted on May 10, 2012, and has been updated with information pertaining to the upcoming special session commencing August 26, 2024.

    The Governor issued an executive order calling the General Assembly into a legislative special session. At this point, many legislators and other people may be wondering what, exactly, is a special session and how does it work?

    The most obvious things that are different about a special legislative session are:

    1. The General Assembly is in session even though the regular, 120-day legislative session has ended, and they can remain in session as long as they choose to do so; and
    2. The General Assembly is limited to addressing only certain subjects while meeting in special session.

    Governor’s Authority: Article IV, section 9 of the Colorado constitution authorizes the Governor to convene the General Assembly “on extraordinary occasions” by a proclamation, known as “the call,” that specifies the purposes for which the General Assembly is to convene. The only business the General Assembly may transact during the special session is the business the Governor specifically identifies in the call. The Governor decides what is an extraordinary occasion and sets the agenda of issues that the General Assembly may consider. The Governor’s call also sets the date and time at which the special session must begin.

    The Governor’s call for the Second Extraordinary Session of the Seventy-Fourth General Assembly directs the General Assembly to convene in special session at 10:00 a.m. on Monday, August 26, 2024. It designates that the General Assembly consider  legislative action and funding for the following: “Concerning property taxes starting with the property tax year commencing on January 1, 2025.”

    Agenda Items: The Governor sets the agenda items, but the Colorado Supreme Court has held that he cannot prescribe the specific form of legislation; he cannot describe the agenda items so narrowly that the General Assembly is forced, in the words of the Court, “to do the bidding of the governor, or not act at all.” The General Assembly decides whether to enact legislation to address the agenda items and, if enacted, how the legislation will address the agenda items.

    It is the advice of the Office of Legislative Legal Services that the question of whether a bill or resolution fits within the agenda items is a substantive, not a procedural, question and cannot be decided by a ruling of the chair of a committee or by a ruling of the President of the Senate or the Speaker of the House of Representatives. Similar to deciding whether a bill is constitutional, the Senate and the House of Representatives decide whether a bill fits within the agenda items when they vote on the bill or resolution.

    Timing: Although the General Assembly must convene on the date and time specified in the call, the General Assembly need not pass, nor even consider, any legislation while in special session, and the General Assembly decides how long the session will last. The Governor may not set a date by which the General Assembly must adjourn.

    General Assembly’s Authority: During a special session, the General Assembly retains its full plenary authority, other than being limited to considering only the agenda items. The General Assembly may convene and, after establishing the presence of a quorum, immediately adjourn. The General Assembly may consider but refuse to pass any legislation during a special session, or it may pass one or more bills that address one or more of the agenda items on the Governor’s call. The Governor has no authority to either force the General Assembly to stay in session or force the General Assembly to adjourn.

    Rules and Procedure: Although the agenda is limited, a special session operates under the same constitutional requirements and legislative rules, other than the deadline schedule, that apply during a regular session:

    • Each bill must have a single subject;
    • Each introduced bill must be assigned to a committee and receive consideration and a vote on the merits; and
    • The vote on second reading and the vote on third reading must occur on different calendar days, so it still takes at least three days to pass a bill.

    All of the legislative rules with regard to committees and the operations of the Senate and the House that apply in a regular legislative session also apply in a special legislation session. If you have additional questions about how the General Assembly operates during a special session, please consult the special session FAQ memo available on the Office of Legislative Legal Services website

  • LegiSource is on Hiatus

    The Colorado LegiSource is taking a break for the next several weeks. We expect to resume weekly postings in September. 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.

  • We’ve Crossed the Finish Line!

    by Jery Payne

    We did it! We just passed the finish line and concluded the Second Regular Session of the 74th General Assembly. The marathon was fun while it lasted, but we’re happy to be sitting down, rubbing our feet, and drinking some water. Around mile 20, our legs felt like rubber, but “Gonna Fly Now” came up on the playlist, and remembering the scene of Rocky running up the steps of the Philadelphia Art Museum, we caught our second wind. When we crossed the finish line, we jumped up and down like the Italian Stallion. We’re tired, but it’s the satisfied kind of tired you feel when you rest after a hard day’s work.

    We hope you feel the same!

    If this year’s legislative session felt a bit busier, that’s because it was. There was a total of 705 bills introduced, with 233 bills introduced in the Senate and 472 bills introduced in the House. Last session, in 2023, 617 bills were introduced. In 2022, 657 bills were introduced. In 2021, 623 bills were introduced. So the General Assembly was a bit more active than usual this legislative session.

    The regular session is done, but the Office of Legislative Legal Services staff is still getting bills signed by legislative leadership, writing digests, indexing, publishing the statutes, and getting bills ready for the governor, who has to decide what to do with each bill. After sine die, the governor has 30 days to sign, veto, or ignore a bill. If the governor signs or ignores a bill, it becomes law. If the governor vetoes a bill, it does not become law and the governor must send it back to the House and the Senate with a letter explaining the reason for vetoing the bill. The General Assembly can override a veto but not if the General Assembly has adjourned sine die.

    The General Assembly could call itself back for a special session to repass the vetoed bill and override the veto, if it is vetoed again. But for now, the legislative votes have been taken and we await the decisions of the governor.

    The next race begins on January 8, 2025. So we have about eight months to do all the work that leads to drafting legislation for the next legislative session. Make that seven months, as we all need a rest!

    Before you know it, interim committees will begin. The General Assembly will be forming two letter interim committees: The American Indian Affairs Interim Study Committee and the Cell Phone Connectivity Interim Study Committee. Plus, HB24-1368 creates the Language Access Advisory Board. The purpose of the Advisory Board is to bring together stakeholders and experts to study and make recommendations on improving meaningful access to the legislative process for populations with limited English proficiency

    Here are the returning interim committees:

    Please enjoy your interim (we will be also enjoying ours). For now, Colorado LegiSource is going on hiatus for the summer. See you in the fall!

  • Election Year Precautions

    Editor’s note: This article was originally written by Bob Lackner and posted on March 24, 2022. This version has been updated where appropriate.

    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 a “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?  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.

  • 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.