Colorado LegiSource

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

Author: olls

  • A Journey of 14,000 Feet Begins With a Single Step, or “How to (Re)Name a Colorado Mountain”

    by Conrad Imel

    In 1861, when botanist Dr. Charles C. Parry was on his first botanical exploration of the Rocky Mountain region in Colorado, two tall mountain peaks attracted the doctor’s attention. Following the practice among botanists to name new plants after each other, Dr. Parry named the peaks after two of his colleagues, Asa Gray and John Torrey. Today, Grays Peak and Torreys Peak, the two “14ers” that sit just west of Denver, are popular with hikers, in part because their proximity allows a hiker to summit both in one day. If you (or anyone in OLLS… hint, hint) wanted to name a mountain after a colleague, how would you go about it? The answer is a little fuzzy, but let’s see if LegiSource can help make sense of it.

    Neither the state nor the federal government has the exclusive authority to name a mountain, so the General Assembly could take steps to rename a mountain for state purposes. But it’s likely the best approach is to work through the federal board responsible for naming geographic features for federal purposes. The names bestowed by the federal board are used on federal maps and often followed by state and local governments.

    Federal renaming process

    Geographic names, including names of mountains, specifically established by federal law or executive order are official for federal purposes and can only be changed by federal law or subsequent order. But many federally recognized geographic names aren’t established by Congress or the President, they are approved by the U.S. Board on Geographic Names (BGN). Congress established the current BGN in 1947 to promote uniformity within the federal government in naming geographic features. The BGN’s decisions only apply to the federal government; state and local governments generally use the federal names, but there is no law requiring them to do so.

    The BGN does not create names for geographic features; it approves or rejects names proposed by others, based on the BGN’s principles, policies, and procedures. For domestic names, anyone can suggest a name for approval by submitting a proposal online or printing and completing a Domestic Geographic Name Proposal form. After receiving a suggestion, the BGN will conduct an investigation to ensure the suggestion conforms to BGN policies. It will also receive input from the general public; state naming authorities; interested federal, state, and local agencies; and federally recognized Indian tribes.

    You probably haven’t noticed any changes to the names of Colorado landmarks lately, and there’s a reason for that. As part of the name change process, the BGN works with the state naming authority in the state where the geographic feature resides. Colorado’s state naming authority was disbanded in 2013, so the BGN ceased working on name changes for features within the state. But fear not, on July 2, 2020, Governor Polis established a new Colorado Geographic Naming Advisory Board that will work with the BGN. BGN staff has met with Colorado’s board to discuss a strategy for addressing the backlog of pending Colorado renaming cases, and the Colorado board recently made its first name change recommendation. On September 16, 2021, the Colorado Geographic Naming Advisory Board recommended changing the name of Squaw Mountain in Clear Creek County to Mestaa’ėhehe Mountain.

    State Geographic Naming

    Since the federal government does not have exclusive authority to name a geographic feature, states like Colorado can name (or rename) a mountain for state purposes. While there is no formal Colorado process for changing a name, there are historic examples where the General Assembly named a Colorado mountain peak, including some that occurred after the establishment of the modern BGN. The General Assembly adopted joint resolutions to name Mount Evans in 1895; rename Mount Wilson as Mount Franklin Roosevelt in 1937; and, in 1978, rename Lone Eagle Peak (named to honor Charles A. Lindbergh who had been known by the nickname “Lone Eagle”) as Lindbergh Peak. The 1978 Lindbergh Peak resolution directed that a copy of the resolution be sent to the BGN. In 1949, the General Assembly passed a bill to rename Veta Peak as Mount Mestas.

    More recently, in 1995, the Colorado Senate approved a resolution supporting the efforts to name a mountain peak in honor of one of Colorado’s legendary early mountain climbers, Carl Albert Blaurock. Eight years later, on October 1, 2003, to honor Blaurock’s legacy of climbing, the BGN approved naming a 13,616-foot peak in Colorado’s Collegiate Peaks range as Mount Blaurock.

    Another wrinkle in a state-specific renaming is that some mountains are in similarly named federal lands. For example, Mount Evans sits in the federal Mount Evans National Wilderness Area. Even if Colorado changed the name of the mountain for state purposes, it could not change the name of the national wilderness area, which was designated by Congress.

    Because it would not affect federal maps, signage, documents, or federally named lands, an exclusively state-based solution may not be the best approach for widespread acceptance of a new mountain name. Instead, working through the BGN’s process will get your (or your colleague’s) name on the map. While the federal renaming process can be lengthy, the first step is simple: head to the BGN’s website to review its policies and make a suggestion. If you’re a member of the General Assembly who would like to draft a resolution to change a mountain name at the state level, or suggest or support a federal change, please contact OLLS to put in your request.

    Research from Nate Carr and Jacob Baus was used in this post.

     

  • ARPA Part 2: The Task Forces

    by Bob Lackner

    As we covered in our last article, in SB21-137, SB21-291, and HB21-1329, the General Assembly created task forces to meet in the 2021 interim and make recommendations concerning how to spend the remaining ARPA funds. Here, we explain those task forces in more detail.

    The federal regulations construing ARPA specify in relevant part that funds may be used for programs or services that address housing insecurity, lack of affordable and workplace housing, or homelessness, including:

    1. Supportive housing or other programs or services to improve access to stable, affordable housing among unhoused individuals;
    2. The development of affordable housing; and
    3. Housing vouchers and assistance to allow individuals to relocate in neighborhoods with high levels of economic opportunity and to reduce concentrated levels of low economic opportunity.

    HB21-1329 requires the executive committee of the legislative council (executive committee), by resolution, to create a task force to meet during the 2021 interim and issue a report with recommendations to the General Assembly and the Governor on policies to create transformative change in the area of housing (Housing Task Force) using the money the state receives from the ARPA fund, which would include the money transferred into the affordable housing and home ownership cash fund.[1] Essentially, the Housing Task Force is to advise the General Assembly and the Governor on how best to spend the remaining $400 million or so now sitting in the affordable housing and home ownership cash fund that the state has received from the ARPA fund and that was not appropriated in the 2021 regular legislative session.[2]

    Similarly, SB21-137 requires the executive committee to create a task force to meet during the 2021 interim and issue a report with recommendations to the General Assembly and the Governor on policies to create transformative change in the area of behavioral health (Behavioral Health Task Force) using the money the state receives from the ARPA fund.

    SB21-291 requires the executive committee, by resolution, to create a task force to meet during the 2021 interim (Economic Recovery Task Force) and issue a report with recommendations to the General Assembly and the Governor on policies that use money from the economic recovery and relief cash fund to help stimulate the state’s economy, provide necessary relief for Coloradans, or address emerging economic disparities resulting from the pandemic.

    All three bills specify that their respective task forces may include nonlegislative members and create working groups to assist their work. In addition, HB21-1329 and SB21-137 direct the executive committee to hire a facilitator to guide the work of the Housing and Behavioral Health Task Forces. The executive committee hired Wellstone Collaborative Strategies as the facilitator.

    The executive committee has issued resolutions creating the Housing, Behavioral Health, and Economic Recovery Task Forces .[3] Both the Housing and Behavioral Health Task Forces consist of 16 members, ten of whom are appointed by majority and minority leadership of the General Assembly. The other six members of the respective task forces are various state officials with responsibility for setting and administering state policy on housing or behavioral health matters, as applicable. In accordance with HB21-1329 and SB21-137, the Housing and Behavioral Health Resolutions created the Affordable Housing Transformational Task Force Subpanel (Housing Subpanel) and the Behavioral Health Transformational Task Force (Behavioral Health Subpanel), respectively. Both subpanels are directed to meet during the 2021 interim to make recommendations to the Housing and Behavioral Health Task Forces on policies to create transformational change in the area of housing and behavioral health, as applicable, using money from the ARPA fund.

    The Housing Subpanel consists of 15 members. Five members of the Housing Subpanel are appointed by the Senate President. Six members are appointed by the Speaker of the House of Representatives. The Minority Leaders of the Senate and House of Representatives are each entitled to appoint two additional members of the task force. Members appointed to the Housing Subpanel must represent various groups and stakeholders and must possess knowledge or expertise in housing issues as specified in the Housing Resolution.

    The Behavioral Health Subpanel consists of 25 members, nine of whom are to be appointed by the Senate president and eight to be appointed by the Speaker of the House of Representatives. The Minority Leaders of the Senate and the House of Representatives are each entitled to appoint four additional members of the subpanel. As with the Housing Subpanel, members of the Behavioral Health Subpanel must represent various groups and stakeholders and must possess knowledge or expertise in behavioral health issues as specified in the Behavioral Health Resolution.

    Under the applicable resolutions, both the Housing and Behavioral Health Task Forces may meet up to ten times during the 2021 interim and the subpanels are required to meet up to 16 times in the 2021 interim. The Housing and Behavioral Health Subpanels are directed to make recommendations to their governing task forces for review, consideration, and approval by those bodies. Both the Housing and Behavioral Health Task Forces are directed to approve recommendations and the final report of each task force by a majority vote of all members of the body.

    The Economic Recovery Task Force consists of eight members, six of whom are appointed by the Majority and Minority leadership of the two chambers. The executive director of the Office of Economic Development and International Trade (OEDIT) and the executive director of the Office of State Planning and Budgeting (or their designees) fill out the remaining appointments to this Task Force. The resolution creating the Economic Recovery Task Force also creates the Economic Recovery and Relief Cash Fund Subpanel (Economic Recovery Subpanel) to meet during the 2021 interim to make recommendations to the Economic Recovery Task Force on policies that use money from the economic recovery and relief cash fund to help stimulate the state’s economy, provide necessary relief for Coloradans, or address emerging economic disparities resulting from the pandemic. The Economic Recovery Subpanel consists of five members, all of whom are required to be economists. Of the five appointments, the Senate President and House Speaker must jointly make two appointments, the Senate and House Minority leaders must jointly make one appointment, the Governor is to make one appointment, and the final appointment must come from OEDIT.

    The Economic Recovery Task Force and Subpanel may each meet up to four times during the 2021 interim. This task force is also directed to approve the final report of the task force by a majority vote of all members of the body.

    The Economic Recovery Resolution also directs the Economic Recovery Subpanel to analyze and synthesize data on the current state of the state’s economy, identify ongoing challenges with the state’s recovery and opportunities for larger growth in specific sectors or industries, and outline the underlying issues that are contributing to the overall economic gaps that are inhibiting recovery and growth.

    In addition, all three resolutions direct state departments and agencies with relevant information to provide assistance and information to the respective task forces and subpanels. With respect to the Housing and Behavioral Health Task Forces, staff from the legislative service agencies will provide support to the respective task forces and subpanels, except for those responsibilities delegated to the facilitators as specified in the requests for information issued for facilitation services. In the case of the Economic Recovery Task Force, the resolution directs the Legislative Council Staff Chief Economist, or his or her designee, to provide information and assistance to the Economic Recovery Subpanel in completing its duties relating to the analysis and synthesis of the state’s economic data.

    Both HB21-1329 and SB21-137 specify that the respective task forces are not subject to section 2-3-303.3, C.R.S., or Joint Rule 24A of the Joint Rules of the Senate and the House of Representatives, both of which govern the conduct of interim committees. This means these bodies will not be treated as regular interim committees and subject to the regular procedural and bill drafting requirements to which interim committees are subject.[4] Instead, both bills specify that the executive committee is to specify requirements governing members’ participation in the work of the respective task forces. Notably, all three bills also specify that the respective task forces are not to submit bill drafts as part of their recommendations.

    Both the Housing and Behavioral Health Resolutions direct the respective task forces to finalize their recommendations by January 11, 2022, and to submit their reports to the General Assembly and the Governor no later than January 21, 2022. Under the Economic Recovery Task Force resolution, the task force is required to finalize its recommendations by December 17, 2021, and to submit its recommendations to the General Assembly and the Governor by January 13, 2022.

    A different process is mandated by SB21-291 for the Economic Recovery Task Force. With respect to that body, the staff of the Joint Budget Committee will review the task force’s recommendations to ascertain whether the recommendations will result in programs requiring ongoing appropriations of state money after the federal money has been expended and to identify whether the recommendations are duplicative of any existing state programs or appropriations or duplicative of any existing federally funded state program. [5]

    It is expected that a major focus of the 2022 regular legislative session will be the drafting and consideration of legislative proposals to implement the recommendations of these task forces and subpanels in the important areas of affordable housing, behavioral health, and economic recovery.

     

    [1] Under the legislation, the General Assembly is also required to review recommendations for policies to create transformative change in the area of housing submitted by the Strategic Housing Working Group assembled by the Department of Local Affairs and the State Housing Board.

    [2] In particular, of the $550 million the state received from ARPA for housing purposes, for the 2021-22 state fiscal year, $98.5 million was appropriated to the Division of Housing in the Department of Local Affairs to expend on programs or services of the type and kind financed through the housing investment trust fund and the housing development grant fund to support programs or services that benefit populations, households, or geographic areas disproportionately affected by the COVID public health emergency to obtain affordable housing, focusing on housing insecurity, lack of affordable and workforce housing, and homelessness. In addition, $1.5 million was appropriated to the state judicial department for use by the eviction legal defense fund to provide legal representation to indigent tenants. Money from the ARPA fund was also used to finance other affordable-housing-related purposes.

    [3] Resolution of the Executive Committee of the Legislative Council, Affordable Housing Transformational Task Force, Updated July 30, 2021 (Housing Resolution);

    Resolution of the Legislative Council, Behavioral Health Transformational Task Force, updated July 30, 2021 (Behavioral Health Resolution)

    Resolution of the Executive Committee of the Legislative Council, Economic Relief and Recovery Task Force, August 26, 2021 (Economic Recovery Resolution)

    [4] SB21-291 fails to specify whether the Economic Recovery Task Force is subject to the normal interim committee requirements but, as with the other two bills, does state that the executive committee will specify requirements for members’ participation in the body.

    [5] The Economic Recovery Resolution summarizes this requirement as follows: “JBC Staff will review the Task Force report to offer analysis on whether programs already exist that would have overlapping missions, and whether anything would likely entail ongoing General Fund obligations.”

  • ARPA Part 1: The General Assembly’s Allocation

    by Ed DeCecco

    As part of the federal “American Rescue Plan Act of 2021” (ARPA), Colorado received $3,828,761,790 from the Coronavirus State Fiscal Recovery Fund. That is quite a bit of money. For context, consider that, if the state received this aid in $1 bills, the stack of cash would be almost 260 miles high, or if those bills were placed end to end, they would loop the earth almost 15 times! Thankfully, Treasury Secretary Yellen didn’t pay the state in singles.

    Nor did the state receive the money unconditionally. Under ARPA, this money must be used for any of the following purposes:

    1. To respond to the public health emergency with respect to the Coronavirus Disease 2019 (COVID–19) or its negative economic impacts;
    2. To provide premium pay for essential workers;
    3. For the provision of government services to the extent of revenue lost due to COVID-19; and
    4. To make necessary investments in water, sewer, or broadband infrastructure.

    The state cannot, however, use this money for a pension payment nor to backfill revenue lost as a result of a tax cut. The federal Treasury Department issued an interim regulation that, among other things, identified a number of permissible uses under each of the broad categories above and established a methodology for determining lost revenue.

    Unlike the federal COVID relief aid the state received through the CARES Act, the General Assembly assumed responsibility over this ARPA money. And because the state need only obligate this money by the end of 2024, and spend it before the end of 2026, it was unnecessary to appropriate all of the money immediately. Instead, the 73rd General Assembly established a framework to allocate the money to several cash funds, which prioritized certain permissible uses, and appropriated a decent portion consistent with those uses.[1] Here is the allocation, with the amounts and related legislation noted:

    Most of the money was first deposited in the “American Rescue Plan Act of 2021” cash fund (ARPA fund), which included general requirements related to the money, such as reporting, that apply even after the money is transferred to and spent from any another fund (recipient fund). If the recipient fund has any other money in it, then, to avoid commingling of the funds, the state controller or department is required to create a companion fund that only has the federal funds but is otherwise legally identical.[2]

    Now, you may be thinking, “No wonder the author went to law school. He is terrible in math, as the amount transferred from the ARPA fund is significantly less than the amount transferred to it.” But that wasn’t a mistake. After the required transfers were made, $300 million was left in the ARPA fund, and that money is continuously appropriated to any department designated by the Governor for any allowable purpose under the Federal Act. In this way, the General Assembly returned the favor for Governor Polis giving it control over some of the COVID relief funds from the CARES Act.

    Still, the lion’s share of the money was transferred from the ARPA fund to other cash funds. The revenue restoration cash fund includes a portion of the money that the state can use for the provision of government services to the extent of revenue lost due to COVID-19. This money is basically for revenue backfill, and it is available for “government services,” which makes it like a baby general fund. No money was appropriated from this fund last session, although the General Assembly did apportion the money to be spent in roughly equal shares over three fiscal years. The other amount that the state thus far has available for “government services” is the $380 million that was directly deposited into Department of Transportation cash funds and allocated under SB21-260.

    The behavioral and mental health cash fund, the workers, employers, and workforce centers cash fund, and the affordable housing and home ownership cash fund were all established to focus on the public health emergency with respect to COVID-19 or its negative economic impacts, with each focusing on specific areas indicated by the fund’s name. The money in the economic recovery and relief cash fund may likewise be used for a number of purposes that fit that prong of the federal law, but the General Assembly may also appropriate the money to make necessary investments in water, sewer, or broadband infrastructure. During the 2021 session, the General Assembly appropriated or transferred over a half billion dollars from these four funds,[3] which means there is still plenty left to be spent over the next few legislative sessions. And to help it spend this remainder, the General Assembly created task forces in SB21-137, SB21-291, and HB21-1329. In our next article, we’ll go over these interesting task forces in detail.

     

     

    [1] Can this allocation change in the future? You bet it can because the General Assembly’s plenary power is not limited by a statute.

    [2] So when it’s all said and done, this framework is responsible for quite a few new cash funds. Apparently the concluding message in a prior LegiSource article, https://legisource.net/2017/02/17/a-legislators-guide-to-creating-cash-funds/, did not resonate.

    [3] For a detailed explanation of how the money was spent, see pages D-8 to D-10 of the Appendix to the Joint Budget Committee Staff’s Appropriation Report Fiscal Year 2021-22, https://leg.colorado.gov/sites/default/files/fy21-22apprept.pdf.

  • LegiSource is on Hiatus

    The Colorado LegiSource is taking a break for the next several weeks. We expect to resume weekly postings on September 9. 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.

    In other news, we have changed our email subscription service from Feedburner to MailChimp. If you were previously subscribed to receive emails for new posts, those should automatically continue.

  • 2021 Legislative Session Adjourns Late with Time to Spare

    By Julie Pelegrin

    Photo of the Colorado State Capitol, framed by trees on Sherman Street. Taken on Sine Die 2021.For the second year in a row, the General Assembly wrapped up the legislative session both early (if you’re looking at legislative days) and late (if you’re looking at the calendar). They started January 13, 2021, as required by the constitution, met for three days, then temporarily adjourned. When they returned on February 16, which normally would have been the 35th legislative day, they picked up counting with the 4th legislative day. So, while it may have felt like everything was running a month behind, the General Assembly was on track – or even a little ahead – for the remainder of the session. When they finally finished their work on June 8 – the 116th legislative day – the General Assembly adjourned sine die with four days of their maximum 120 calendar days to spare even though it was a month late compared to pre-pandemic sessions.

    This strange calendar was again the result of being in session while the Governor’s statewide public health disaster emergency order was in place and operating under Rule 44 of the Joint Rules of the Senate and House of Representatives. While the General Assembly was meeting in January, one of the actions they took was passing Senate Joint Resolution 21-001, which adopted the joint rules of the 72nd General Assembly as the temporary joint rules of the 73rd General Assembly, but made a couple of important changes to Joint Rule 44. First, the House and the Senate amended the rule to state that it remains in effect so long as the Governor’s public health disaster emergency is in effect or until the Executive Committee terminates the operation of the rule. With this change, a majority of the members of the Executive Committee (the President, the Majority Leader, and the Minority Leader of the Senate; and the Speaker, Majority Leader, and Minority Leader of the House of Representatives) can decide that the General Assembly is no longer operating under the rule, regardless of whether the public health disaster emergency order is still in effect.

    The other significant change to Joint Rule 44 affects how the legislative days are counted. During the 2020 legislative session, once the public health disaster emergency was declared and Joint Rule 44 came into effect, only those days on which one or both of the houses convened counted against the 120-day maximum. That meant that the weekends, when usually neither house convened, did not count, which significantly extended how late the session could continue into the year even if the General Assembly did not take a temporary adjournment. With the General Assembly’s changes to the rule, once the General Assembly convenes in a year in which Joint Rule 44 is in effect, every calendar day counts toward the 120-day maximum, unless both houses agree to temporarily adjourn for more than three days. So, the days during the temporary adjournment from January 16, 2021, through February 15, 2021, did not count, but once the house reconvened on February 16, every day counted.

    In terms of introduced bills, this session was a little low compared to past years, but the pass rate was the highest in at least the last eight sessions. In all, 623 bills were introduced; 503 bills (81%) were enacted and 120 bills (19%) were killed. Of those bills that were enacted, as of June 17, the Governor had vetoed one bill, allowed two bills to become law without his signature, and signed approximately 250 bills. Almost half of the enacted bills are still waiting for the Governor’s action; he has until July 8 to either sign or veto them. At 12:01 a.m. on July 9th, any bills not acted on will become law without his signature.

    Similar to last session, the remarkable thing about the 2021 session was not the total number of bills introduced, but the timeframe in which bills were introduced. Sixty-five bills were introduced after May 1, with just over a month left in the session. Fourteen of those bills were introduced with just two weeks left in the session. These late bills included the annual school finance bill and a separate bill to change the school finance funding formula; an almost 200-page transportation funding bill; several criminal law reform bills, including a 360-plus page bill on misdemeanor reform; a bill to modernize the public utilities commission; a bill to create a new department of early childhood; some climate change and energy bills; several significant tax reform measures; a prescription drug pricing bill; and several bills to spend millions of dollars in federal stimulus money. Suffice it to say, those final five weeks were busy.

    Even with so many bills so late in the session, the General Assembly managed to adjourn four days early, a feat few thought they could achieve. And at this point, the General Assembly has no plans to return until the second regular session of the 73rd General Assembly convenes on January 12, 2022. Here’s hoping the 2022 legislative session will follow a more normal pattern…whatever that means.

  • CO Supreme Court Holds that Independent Really Means Independent

    by Julie Pelegrin

    This week, we’re looking at the second set of interrogatories that the General Assembly sent to the Colorado Supreme Court during the 2021 legislative session. House Joint Resolution 21-1008 asked the court to determine whether the changes made in Senate Bill 21-247, concerning the procedures of the independent redistricting commissions, would be constitutional if adopted. The court held that the changes in the bill would not be constitutional and clarified a limit on the plenary authority of the General Assembly.

    To understand the questions and the answers, we’ll start with some background on the redistricting process in Colorado.

    Every 10 years, in the year following the U.S. Census, the boundaries for congressional and state legislative districts are redrawn to ensure equal population as required by the federal constitution. In 2018, voters passed Amendments Y and Z, codified in sections 44 to 48.4 of article V of the Colorado Constitution, which create the independent congressional redistricting commission and the independent legislative redistricting commission to draw the congressional and legislative district maps.[1] The amendments also provide instructions for how to draw the maps (usually called redistricting plans), including criteria to apply in determining the district boundaries and very specific timelines for proposing the redistricting plans, getting public feedback on the plans, and submitting the plans to the Colorado Supreme Court for final approval.

    These timelines are based on an initial triggering event: Receiving the “necessary census data,” presumably by April 1 of the year following the census. This year, however, due mainly to the COVID-19 pandemic, the states are not receiving the census data until much later. At this point, the anticipated date for receiving the data is August 16, 2021, more than four months late. And the data released by this date won’t be tabulated and user-friendly for data access. That data won’t be available until September 30, 2021.

    Obviously, this delay wreaks havoc with the timelines specified in the constitution, which require:

    • Preliminary redistricting plans to be prepared by early May;
    • The commissions to hold several public hearings on the plans before July 21;
    • The commissions to consider up to three staff plans that are prepared after the public hearings are complete;
    • Each commission to submit an approved plan to the Colorado Supreme Court by September 15;
    • The court to either approve each commission’s plan or sends the plans back for reconsideration by November 15; and
    • The court to finally approve plans for both congressional and legislative districts no later than December 29, 2021.

    If the independent commissions cannot meet this timeline, there’s a strong likelihood that the deadlines for the 2022 election cycle will need to be delayed. To avoid that situation, the General Assembly introduced SB21-247 to make it clear that the commissions could begin their work using preliminary census data, but that the final plans must be based on the final census data. Also, to avoid protracted legal challenges to the process that the commissions follow, SB21-247 provided that a court, in considering a challenge to the plans on technical grounds, would apply a substantial compliance standard; that is, the plans would not be found to be unconstitutional on technical grounds so long as the commissions substantially complied with the technical constitutional requirements.

    The constitution uses the term “necessary census data” to describe the data the independent commissions must use to create the redistricting plans. That term isn’t defined in the constitution, but it is defined in section 2-2-902 (1)(c), C.R.S., as the federal decennial data published for the state by the United States Census Bureau and adjusted by the General Assembly’s nonpartisan staff to reflect changes concerning the residential addresses of incarcerated persons. This, of course, is the data that the commissions will not receive until August or September this year – much too late to begin the process of preparing plans.

    SB21-247 redefined “necessary census data” for this year only, to include population estimates from the census data and other data selected by the independent commissions. The bill also required the final plans to be based on “final census data,” defined as the data the commissions will receive in August and September of this year. The bill also included provisions concerning how and when the commissions will release the plans that are based on the final census data, including the requirement to hold at least one public hearing after receiving the final census data.

    As faithful LegiSource readers will recall, the General Assembly has plenary legislative authority, meaning it may enact legislation with regard to any issue or subject, so long as the legislation is not prohibited by or in conflict with the constitution. Amendments Y and Z specifically instruct the General Assembly to set compensation for the persons who assist in selecting the commissioners, appropriate money for commission expenses, and provide a per diem allowance for commissioners. But the amendments do not appear to specifically limit the plenary authority of the General Assembly, and the provisions of SB21-247 do not conflict with any provision of the amendments. The General Assembly therefore was arguably acting within the boundaries of its plenary authority in enacting SB21-247 to facilitate the work of the independent commissions. However, to avoid any legal challenges to the redistricting plans based on the provisions of SB21-247 that would cause delay to the 2022 election cycle, the General Assembly asked the Colorado Supreme Court for its opinion as to whether the provisions of SB21-247 are constitutional.

    The court held in a 5-2 opinion that they are not.

    The court reviewed Amendments Y and Z and concluded that by their terms they do not require the independent commissions to use only final census data when creating the preliminary and staff plans. Thus, the commissions can begin their work without waiting to receive the data that are scheduled to be delivered in August and September. However, for the final redistricting plans to comply with the criteria specified in the constitution, those plans likely must be based on the final census data received in August and September.

    The court also concluded that the General Assembly’s grant of plenary authority actually does not extend to legislation concerning Amendments Y and Z; the General Assembly does not have authority to direct the actions or operations of the independent redistricting commissions, except as specifically stated in the amendments. The court held that, in adopting Amendments Y and Z, the voters specifically intended to “divest the legislature” of authority over the redistricting process and especially over the independent commissions. Any authority of the General Assembly over those commissions must be specifically stated within the amendments. And in this case, Amendments Y and Z give the independent redistricting commissions and their staff “sole constitutional authority to conduct all of the key tasks in the redistricting process.” In adopting Amendments Y and Z, the voters put the redistricting process “beyond the power of the legislature.”

    Finally, the court held that the General Assembly cannot define the standard that a court applies when reviewing compliance with constitutional requirements, even if those requirements are purely technical. The General Assembly may establish the standard for determining compliance with statutes that the General Assembly enacts, but it cannot set the standard for determining compliance with constitutional provisions that the people enact. That decision lies solely with the courts.

    While the court was considering the interrogatories, SB21-247 rested on the third reading calendar in the House of Representatives. After the court announced its decision on June 1, 2021, the House effectively killed the bill by agreeing to lay it over until July 8, 2021.

     

     

    [1] Before 2018, the General Assembly was charged with congressional redistricting and a redistricting commission appointed by the Governor, the Chief Justice of the Colorado Supreme Court, and legislative leadership created the legislative redistricting plans.

  • Supreme Court Weighs In on Constitutionality of Two Bills

    by Julie Pelegrin

    For the second session in a row, the General Assembly sent interrogatories to the Colorado Supreme Court to ask whether pending legislation is constitutional. This session, the General Assembly actually sent two request for interrogatories to the Court: One regarding House Bill 21-1164, which concerns the number of mills that a school district must levy; and the other regarding Senate Bill 21-247, which addresses certain redistricting issues. And for the first time in recent memory—maybe ever—the Court agreed to answer the questions with regard to both bills.

    This article provides some background to HB21-1164 and explains the question asked and the Court’s answer. A future article will cover the request for interrogatories regarding Senate Bill 21-247. In a nutshell, the Court held that the General Assembly can constitutionally require school districts to increase their property tax mill levies over time up to the number of mills that they levied when their voters waived the revenue limits in the Taxpayers’ Bill of Rights (TABOR).

    Colorado funds its school districts by calculating how much each school district should receive based on a formula that takes several factors into account. The amount that each school district receives is paid for by a dual funding system; the statute specifies how many property tax mills each school district must levy, and if the amount of property tax revenue received from that levy isn’t enough to completely pay for the district’s formula funding, then the state pays the rest.

    In 1994, when the state passed the current school finance act, each school district was required to levy the lesser of: 1) The number of mills required to fully fund the school district’s formula amount; 2) The number of mills that would generate tax revenue within the limits imposed by TABOR; or 3) The number of mills levied in the previous property tax year. So, if a school district’s assessed property value increased in one year, the school district would likely have to reduce its mill levy to stay within TABOR revenue limit. But if the property values went down in next year, the school district could not increase its mill levy back to the previous number of mills because the statute would not allow it to levy more than it levied in the previous year.

    Shortly after the voters approved TABOR, school districts started asking their voters to waive the revenue limits, a request TABOR allows school districts to make. Eventually the voters in 174 of the 178 school districts authorized their districts to continue collecting and spending revenue in excess of the limit. Under the mill levy statute, this should have meant that, once a school district had this approval from its voters, the school district’s mill levy would never have to decrease because the revenue limit imposed by TABOR would never apply. But that’s not what happened.

    The department of education advises school districts concerning the number of mills the school district is required to levy under the statute. If a school district doesn’t levy the required number of mills, then it can affect the amount of money the school district receives from the state to fully fund the school district’s formula amount. The department continued to advise school districts to lower their mill levies to stay within their TABOR revenue limits, even after the school districts’ voters had waived those limits. As explained above, this meant that school district mill levies went down, and the statute would not allow those levies to go back up. The result? The state paid more and the school districts paid less. In 1994, all of the school districts combined paid about 47% of the total formula funding in the whole state, and the state paid about 53%. By 2007, the school districts were paying 36% and the state was paying 64%.

    In 2007, the General Assembly changed the statute to stop the reduction of mill levies for school districts that were no longer subject to the TABOR revenue limits. Starting in the 2007 property tax year, school districts were required to levy the lesser of: 1) The number of mills required to fully fund the school district’s formula funding; 2) The number of mills required to stay within the TABOR revenue limit, but only if the school district was still subject to that limit; 3) The number of mills levied in the preceding property tax year; or 4) 27 mills. With this change, the mill levies stopped going down, but they didn’t go back up.

    In the 2020 legislative session, the General Assembly decided to do something about raising the school district mill levies back to the levels that were in effect when school district voters agreed to waive the TABOR revenue limits. They enacted [House Bill 20-1418] enrolled bill, which reset the school district mill levies for school districts that are no longer subject to the TABOR revenue limits. Starting in the 2020 property tax year, the school districts are required to levy the lesser of: 1) The number of mills required to fully fund the school district’s formula funding; 2) The number of mills the school district would have been levying if not for the reductions required by the department of education; or 3) 27 mills. But when the bill passed, the state was in the middle of a pandemic, so rather than actually require tax payers to pay more in 2020, HB20-1418 also said that each school district that was increasing its mill levy would grant a temporary tax credit for the full amount of the increase. So, even though the mill levies were reset to the previous levels, taxpayers paid the same amounts they paid in 2019.

    That brings us to now. During the 2021 legislative session, the General Assembly introduced HB 21-1164, which directs the department of education to adopt a schedule to reduce the temporary tax credits by no more than one credit per year, until each school district’s tax credit is removed. At this rate, most school districts will have completely removed the tax credits by about 2024.

    There was some question, however, as to whether reducing the tax credits—and thereby increasing the school districts’ mill levies—is constitutional. In addition to imposing revenue limits, TABOR requires a school district to obtain voter approval in advance for “…a mill levy above that for the prior year…”. Even though HB20-1418 and HB21-1164 are together correcting an error and restoring the school district mill levies to the levels that would have been in effect without the error, this restoration does result in school districts assessing mill levies that are higher than those assessed in the previous year. Rather than require the school districts to risk litigation, the General Assembly sent an interrogatory—a question—to the Court. Is it constitutional for the General Assembly to require school districts to eliminate the tax credits and restore the mill levies without seeking voter approval?

    The Court, by a vote of 6-1, said yes, resetting the mill levies without additional voter approval is constitutional. The Court concluded that, when voters waived the revenue limits for their school districts, they essentially approved the mill levies that were in effect at the time of the election, and they expected those mill levies to continue. Since the voters had already approved those mill levies, correcting the error and resetting the mill levies to those levels does not require the voters to approve them for a second time.

    Next, we’ll discuss the Court’s answers to the questions concerning SB21-247. Spoiler alert, they were not in the affirmative.

  • End of Session Approaches Triggering Exceptions in Legislative Rules

    by Julie Pelegrin

    For the second year in a row, we know we’re close to the end of the regular legislative session, we just don’t know how close. We know the General Assembly must adjourn sine die no later than 11:59 p.m. on June 12. But rumors have been circulating for some time now that “the plan” is to finish early. How early is anyone’s guess.

    First, a brief reminder of why we know everything must come to a screeching halt no later than June 12. Article V, section 7 of the Colorado Constitution requires the General Assembly to meet annually in regular legislative session for no more than 120 calendar days. Normally, these legislative days are counted as consecutive calendar days, starting with the first day of the session, regardless of whether the House or the Senate actually convenes on a particular day.

    Last year, the Colorado Supreme Court confirmed the constitutionality of Rule 44 of the Joint Rules of the Senate and House of Representatives, which at the time provided that, during a declared state of emergency based on a public health epidemic, the General Assembly would only count those days on which one or both of the houses actually convened toward the 120-day limit. The General Assembly amended Rule 44 last January to state that every day after the General Assembly convenes counts toward the 120-day limit, except when both houses temporarily recess for longer than three consecutive days. So, since January 13, 2021, every calendar day has counted, except the 31 days beginning January 16, 2021, and continuing through February 15, 2021. So that’s how we know today—May 28, 2021—is the 105th legislative day and June 12th is the 120th legislative day (assuming both houses don’t adjourn for more than three days before the 12th).

    The Senate Majority Leader has issued a memo stating that, as of Wednesday, May 26, the Senate is in the last three days of session. The House Majority Leader has announced that as of Thursday, May 27, the House is in the last three days of session.

    This does not necessarily mean the General Assembly will adjourn sine die in three days, but it means that the exceptions in the legislative rules that apply only during the last three and the last two days of the session are now in effect.

    Those exceptions are:

    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. See Senate Rule 22 (f). 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 must 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 in the House 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.

    And there are a couple of additional rule changes that have apparently been in effect for some time:

    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 two weeks:

    • Senate Rule 22 (a)(2): During the final two weeks of a legislative session, allows a Senate committee chairman to schedule a committee hearing on a day other than the usual day the committee meets.

    While we don’t know exactly the date on which the General Assembly will finally adjourn this year’s legislative session, we may, with some confidence, plan to sleep in on June 13th.

  • The Mighty Colorado River – Once Known as Merely Grand

    by Patti Dahlberg

    Today the name “Colorado” runs continuously with the mighty river that originates in Colorado’s Rocky Mountains and runs south and west for 1,450 miles through Utah and Arizona and along the Nevada and California borders before heading into the Gulf of California in northwestern Mexico. But this was not the case before 1921.

    For many years, various explorers wandered through the West naming landmarks as they went along. The river beginning at the Continental Divide in northwest Colorado and flowing south and west out of the state was called the Grand River. The river’s name then changed from “Grand” to “Colorado” where the Green River met it in southeastern Utah continuing on through the Grand Canyon and out to sea. Prior to being called the Grand River around 1836, portions of the river had also been known as the Rio San Rafael River, the Bunkara River, the North Fork of the Grand River, and the Blue River. The “Colorado” in the river’s name is Spanish for the “color red,” referring to the river’s muddy color flowing through the canyons in Arizona and Utah, but “Colorado” was just the final name in the long line of labels for this amazing river over the years. In the 16th century, Spanish explorers called the river Rio del Tizon, which translated to River of Embers or Firebrand River. Later, some portions of the river may have been Rio de Buena Guia, Rio Colorado de los Martyrs, Rio Grande de Buena Esperanza, Rio Grande de los Cosninos, and the El Rio de Cosminas de Rafael as explorers discovered those portions. But by the time John Wesley Powell navigated and mapped the Grand Canyon in 1869, “Colorado” was the accepted name of the river flowing through the canyon.

    The Colorado River is known for its dramatic canyons and whitewater rapids, however, the river is not one single channel running from the Continental Divide, slicing through the Grand Canyon, and on to the sea. The river consists of many major tributaries merging together to form the Colorado River Basin. The Basin’s 246,000-square-mile drainage area includes parts of seven states—Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada, and California and forms 17 miles of the international boundary between the United States and Mexico. The river supplies water to more than 40 million people and 90% of the nation’s winter vegetable production and is justifiably considered by many to be the “Lifeline of the Southwest.” Today a system of dams, reservoirs, and aqueducts control much of the Colorado and its tributaries, diverting most of its flow for agricultural irrigation and domestic water supply. The Colorado’s large flow and steep gradient is used for generating hydroelectric power, and dams regulate the water flow to meet power demands in much of the western states. Unfortunately, high water consumption has dried up the lower 100 miles (160 km) of the river, which has rarely reached the sea since the 1960s.

    But for roughly six million years before the dams, the unfettered and free-flowing Colorado River cut deep gorges in the land, and not just through the Grand Canyon. Along the waterways joining the Colorado —the Virgin, Kanab, Paria, Escalante, Dirty Devil, and Green rivers from the west, and the Little Colorado, San Juan, Dolores, and Gunnison from the east — many narrow, winding, deep canyons  were also carved, such as Colorado’s stunning Black Canyon of the Gunnison River. Canyons cut by the rivers in Arizona and Utah include Marble Canyon, Glen Canyon, and Cataract Canyon, with the longest of these unbroken trunk canyons being the spectacular and much loved Grand Canyon. It shouldn’t be surprising that the Colorado and its tributaries flow through or near many national parks, monuments, and recreational areas.[i]

    The Name Change

    In 1921, U.S. Representative Edward T. Taylor of Colorado petitioned Congress to rename the Grand River as the Colorado River. The Glenwood Springs resident and former Colorado State Senator could not accept that the Colorado River name started in Utah and not in his beloved state. “It is absurd for one part of any stream to be given one name and the rest of the stream another name.” Congressman Taylor loved Colorado and already had a reputation for getting up on the House floor to make five to ten minute speeches about his beautiful state. He took the renaming of the Grand portion of the river as a personal mission. It was Taylor’s strong sense of state pride and historic knowledge that helped persuade Congress to change the river’s name . . . and maybe a decade of speeches and tenacity helped too.

    On February 18, 1921, Congressman Taylor appeared before the Congressional Committee on Interstate and Foreign Commerce regarding House Joint Resolution 460 “Renaming of the Grand River, Colo.” (See hearing report/transcript, H.J.R. 460 starts on page 14.) Based on his opening statement and answers to committee questions, Congressman Taylor came prepared to argue why the Colorado River name should flow continuously with the river that originates in Colorado and continues west to the sea. He provided national and regional history, local context, precedent, testimonials, statistics and measurements, and even threw in an international treaty for good measure. In his opening statement, he described the Colorado River as “the Nile of America,” and said it “is by far the most picturesque, scenic, unique, marvelous, and famous river in the world.” As for the state of Colorado, Taylor said, “… for the past 60 years, “Colorado” has meant the heart of the Golden West, the actual top of the world, the land of sunshine, good health, and gorgeous scenery, the summer playground of the Nation, the Switzerland of America, the bright jewel set in the crest of this continent, where it shines as the Kohinoor of all the gems of this Union; the sublime Centennial State.”

    It did not concern Taylor that traditionally the longest tributary is regarded to be a river’s headwater or origin and the Green River—originating in Wyoming—was actually twice as long as and had a larger drainage basin than the Grand River.. Taylor backed up his claim for Colorado state superiority with volume statistics showing that the shorter Grand River (350 miles long) contributed more water to the mighty Colorado. According to information from the Colorado Historical and Natural History Society contained in the hearing report, the Grand River provided 40% of the Colorado River’s water flow, and when combined with water flow from the San Juan, Yampa, White, and other Colorado rivers, water from the state of Colorado provided closer to 60% of the river’s flow. The Natural History Society report also noted that the Green River receives more than a third of its water flow from Colorado’s Yampa and White rivers.

    But Taylor may have found his most persuasive argument in the record of the U.S. Senate’s proceedings from 1861 when the Senate named the Colorado Territory. As introduced and passed by the House, the name in the bill for the proposed new territory was the “Territory of Idaho”, other names reportedly considered were Jefferson and Arcadia. In the Senate, however, the name “Idaho” was stricken and “Colorado” inserted “for the reason that the Colorado River arose in its mountains, hence there was a peculiar fitness in the name.”

    Colorado’s 23rd General Assembly sent its support for renaming the Grand to the Colorado in Senate Bill 79 (later approved on March 24, 1921), the reengrossed version was included, along with various letters of endorsement, in the official Congressional Committee hearing report. After receiving support from governors and state assemblies in Colorado and Utah for the renaming of the Grand, Congress officially renamed the interstate waterway. The Committee on Interstate and Foreign Commerce ended its report to the House of Representatives with this statement: “There being no apparent reason sufficient in the judgment of your committee to counteract the expressed desire of the people of the State of Colorado to have this change made, your committee unanimously recommends the approval of this resolution.” On July 25, 1921, the 66th Congress passed the resolution renaming the Grand River, in spite of some lingering objections from some Wyoming and Utah representatives.

    No worries, Colorado does still have its share of Grand – you only have to look around to see that. But more specifically there’s also the Grand Ditch, which pulls water from the Colorado River to the eastern slope; Grand Junction, at the confluence of the Gunnison and the then “Grand” Rivers; and, of course, Grand County.

    The Colorado River Story Continues

    The Colorado River may be one of the most litigated rivers in the world and, as the demand for Colorado River water continues to rise, the level of development and control of the river continues to generate controversy.

    In 1922, the Colorado River Compact divided the river into the lower compact states—Arizona, California, and Nevada—and the upper compact states—Colorado, New Mexico, Utah, and Wyoming. It was the first time more than three states negotiated an agreement among themselves to allocate the waters of a river. At that time the total annual flow of the Colorado River was estimated to be close to 16.5 million acre-feet ( an “acre foot” is the amount of water required to cover one acre to a depth of one foot) at Lees Ferry, AZ., of which 15 million acre-feet were divided between the lower and the upper compact states. A treaty in 1944 allocated 1.5 million acre-feet of water per year to Mexico. It was later realized that the initial estimate of Colorado River water volume in the 1922 compact was based upon an abnormally wet period and that substantially less water was available than the amounts specified in the agreements. In 2019, after several years of negotiations and in response to ongoing drought conditions and the increased potential for water supply issues, the upper and lower basins began implementing drought contingency plans to manage water demand.

    Sources:

     

    [i] National monuments, parks, and recreation areas located in the Colorado River Basin:

    • Arches National Park
    • Black Canyon of the Gunnison National Park
    • Bryce Canyon National Park
    • Curecanti National Recreational Area
    • Canyonlands National Park
    • Dinosaur National Monument
    • Glen Canyon National Recreation Area
    • Grand Canyon National Park
    • Lake Mead National Recreational Area
    • Natural Bridges National Monument
    • Rocky Mountain National Park
    • Zion National Park

     

  • How Federalism Shapes the People’s Courts

    by Jessica Wigent

    Editor’s note: This article was originally posted December 31, 2015. Because the impact of federalism on our judicial system is still relevant, we decided it would be helpful to post it again.

    In a recent webcast presented by the Council of State Governments, Lisa Soronen, executive director of the State and Local Legal Center, and Paul Clement, a former U.S. Solicitor General, discussed federalism, how it guides our complex judicial system, and how courts’ decisions impact state governments. It’s a useful review as we come to the close of 2015 and look ahead to court cases in the coming year.

    Federalism, from the Latin root foedus, or “formal agreement or covenant,” is a system of government where authority is allocated between national and state governments— and for our purposes here, state and federal courts.

    Alexander Hamilton, “the ten dollar founding father without a father,” as he is described in the celebrated Broadway play named for him, summed up the usefulness of our system, calling it “a double security to the people,” because if our rights “are invaded by either [our state or federal government], [we] can make use of the other as the instrument of redress.”

    So how does this intricate balance of power work?

    The federal courts:

    • Answer constitutional questions (Was a fundamental liberty at stake in the gay marriage debate? The Supreme Court said yes in Obergefell v. Hodges)
    • Handle interstate tussles (The Supreme Court is currently deciding whether to hear Oklahoma’s and Nebraska’s lawsuit against Colorado over recreational marijuana)
    • Step in when Congress passes a law some say is murky (What did Congress really mean to say about subsidies and federal and state health exchanges in the Affordable Care Act? The Supreme Court answered this question in King v. Burwell)
    • Hear cases where the United States is suing or being sued (Remember when then-President Richard Nixon tried to tell the New York Times and the Washington Post they couldn’t publish the then-classified Pentagon Papers? In New York Times Co. v. United States, the Supreme Court said the First Amendment protected the paper’s right to publish the documents detailing the country’s involvement in Vietnam)

    And the state courts? Well, they decide (almost all of) the rest—from traffic tickets to whether awarding state-funded tuition scholarships to students who attend sectarian schools violates the Colorado Constitution. (Whether the latter violates the First Amendment of the U.S. Constitution is an issue the federal courts would have to decide.)

    The structures of the federal and state courts are fairly similar:

    Level Colorado State Level Courts Federal Level
    Lower courts (hold trials, make findings of fact and law) County and district courts, scattered throughout 22 judicial districts across the state, and specialized courts (like our seven water courts) U.S. District Court, District of Colorado
    Intermediate courts (hear appeals from the lower courts) Colorado Court of Appeals 10th Circuit Court of Appeals
    The high court (hears appeals from the intermediate courts, sometimes) Colorado Supreme Court U.S. Supreme Court

    So we’ve got the levels down; we know which cases end up in which court. Now, how do cases get decided?

    Again, both state and federal courts work similarly. As Soronen explained, the courts use a hierarchy of laws when making their decisions. First, they look to the (federal and/or state) constitution, then to statutes passed by the Congress/legislature, then to rules and regulations created by administrative agencies (like the I.R.S. or the Colorado Department of Education), and, finally, they look to case law and common law.

    The law develops through the expansion of case law—as courts answer more and more questions and make rulings on certain issues, they have more and more references to turn to and follow when considering their decisions. This is called applying precedent—or stare decisis, meaning Let it Stand!—and it is (usually) the guiding principle of our judicial system, aiding both we the people and the courts in many ways:

    • It’s efficient
    • It’s fair
    • It gives the system predictability
    • It’s a check on arbitrary behavior

    So when does precedent apply? Lest you think we forgot the title of this post (we are supposed to be talking about federalism after all) the precedent of a state court applies just to that state’s courts. If the Colorado Supreme Court says it tastes like chicken, so do the Colorado Court of Appeals and the county and district courts. But whatever it tastes like in California or New Jersey or Texas doesn’t affect what it tastes like in Colorado. In the federal system, the same hierarchy applies within the districts and circuits, except that, when the U.S. Supreme Court says it tastes like chicken, every court in our fair land—state and federal— says it does too.

    Soronen explained that state courts are not bound by interpretations of federal law made by the federal district courts or federal courts of appeals, even in the same state! And this means? Judges in state courts throughout Colorado aren’t bound by rulings made by a judge from the U.S. District Court, District of Colorado or the Tenth Circuit Court of Appeals. This can get confusing fun (States interpret state and federal law! Federal courts can’t tell state courts what to do!) and is a product of the philosophical compromise of our Founding Fathers that led to our federalist system of government.

    We Coloradans would do well to understand how federalism and the courts work, so we can better understand why TABOR has been challenged in both state and federal courts, why our friendly state neighbors to the east and southeast are suing us over marijuana in federal and not state court, and why, at least for now, our school voucher cases have only been heard in state court.

    At the Constitutional Convention in 1787, Delaware Delegate John Dickinson famously said: “Let our government be like that of the solar system. Let the general government be like the sun and the states the planets, repelled yet attracted, and the whole moving regularly and harmoniously in several orbits.” What we ended up with is more complicated than what he envisioned, but it’s a system, and it’s ours.