Colorado LegiSource

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

Author: olls

  • 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.

  • Throwback Thursday: Looking Back at 1921 and the Twenty-third General Assembly – Part 2

    Throwback Thursday: Looking Back at 1921 and the Twenty-third General Assembly – Part 2

    by Patti Dahlberg

    In the first part of our look back at 1921 and the Twenty-third General Assembly, we learned that the “Roaring Twenties” we associate with economic prosperity and freewheeling social spirit started out with America struggling with a faltering economy and growing social unrest. By the time the General Assembly was gaveled into order the first week of January 1921, the Dow Jones had been spiraling downward for 12 months, the nation had suffered the worst terrorist attack in its history, and Colorado’s rural economy was faltering.

    The General Assembly convened at “12 o’clock, noon” on Wednesday, January 5, 1921. At the time, the Colorado Constitution required the legislature to convene on the first Wednesday in January. In the House of Representatives, Mr. R.L. Shaw, the acting Chief Clerk of the House of the twenty-second General Assembly, called the House to order and read the official announcement from the Secretary of State’s office designating the members elected to the House. Mr. Shaw was then elected as temporary Chief Clerk (later elected the permanent Chief Clerk) for the twenty-third General Assembly and roll was called. Representative Godsman was unanimously elected as temporary speaker and escorted to the podium to make a few remarks. A committee on credentials was selected to certify the Secretary of State’s list of elected members, and another committee was appointed to inform the Supreme Court that the members of the House were ready to receive their oath of office. After the oath was administered, Representative Roy A. Davis of El Paso County was elected to preside as Speaker of the House and took the oath of office. (Photo from Presidents and Speakers of the Colorado General Assembly, Denver, Colorado, 2016 Edition.)  The 1921 House convening day session ended by adjourning in memory of Charles A. Raye, former Representative from Las Animas County.

    Down the hall, the Senate was called to order by Lieutenant Governor George Stephan, presiding as the Senate President. (Before 1974, the constitution required the state’s Lt. Governor to serve as President of the Senate, voting only when needed to break a tie.) Roll for the holdover Senators was called, and the Senate President appointed several temporary staff members, including Mr. N.N McLean as temporary Secretary of the Senate (later elected the permanent Secretary). The Senate Secretary read the Secretary of State’s official announcement designating the newly elected Senators. A committee on credentials was selected to certify the Secretary of State’s list of elected members, and another committee was appointed to inform the Supreme Court that the newly elected Senators were ready to receive their oath of office. After the oath was administered, the new roll was called. The next order of business was election of a President pro tem of the Senate. Francis J. Knauss was elected with 24 votes and escorted before the bar of the Senate to receive the oath of office. Several days later, on Tuesday, January 11 (the 7th Legislative Day), a joint session was convened to introduce and administer oaths of office to the re-elected Governor Shoup and the newly elected Lt. Governor Earl Cooley, as well as other elected state officials. Lt. Governor Cooley was then presented with the Senate gavel to begin his duties as Senate president. (Photo from Presidents and Speakers of the Colorado General Assembly, Denver, Colorado, 2016 Edition.) 

    On the third legislative day, Friday, January 7, 1921, the honorable Oliver H. Shoup, 22nd Governor of Colorado, addressed a joint session of the House of Representatives and the Senate. He began his address with “Great responsibility at all times rests on those charged with the duty of making and enforcing laws, and it is not an exaggeration to say that this responsibility rests heavy at this time both in State and Nation. The situation is hopeful rather than alarming, but must engage our most serious thought and consideration.” The state and national economy was suffering, and quoting from a recently attended Governor’s conference, he said, “The financial situation in the whole country is cause for the gravest concern but not for despair. All lines of business are realizing heavy losses, but the swift decline of prices of farm commodities to far below the cost of production threatens a national disaster. The situation demands infinite patience and forbearance and supreme wisdom and courage. Nothing but evil can result from anger or fear.”  He made a public appeal for individuals and communities to do all they could to help their neighbors and neighborhood businesses, and “to not destroy” good people because they cannot immediately meet obligations. He encouraged the General Assembly to legislate what relief it could to assist the people of Colorado, in particular farmers and stock growers who were especially hard hit.

    Governor Shoup outlined legislative actions that he considered most important.  He asked for highway legislation for the state to construct and maintain public roads and highways, and to assign highway oversight responsibility to a state official who would report directly to him. He encouraged the Legislature to introduce a series of bills to consolidate state departments to eliminate work duplication. The Governor indicated that a new code was needed to systematize the state’s administrative work and asked the General Assembly to “submit to the people a proposal for a constitutional convention” to make the necessary changes to the state’s constitution. He proposed that the state’s budget process allow for more input from the Governor’s office and state departments and that the State Auditing Board be abolished in favor of a Central Purchasing Agency.

    Other concerns were the disparity in teacher salaries across the state, term limits for public officials, protecting investors from the sale of worthless securities, job training and vocational education, and the need for more child welfare laws and for better laws to protect Colorado’s game and fish. He applauded the National Guard for its assistance in monitoring domestic disturbances and protecting life and property during the Tramway strike and asked for an appropriation to construct National Guard armories. He announced the revival of the Colorado Rangers (established in 1861, they served as the State’s first statewide law enforcement agency) and asked the legislature to appropriate the necessary funds for it. The Governor recommended an increase in the state’s low inheritance tax and suggested that state revenue could also be increased by gathering more accurate property information. He called for the legislature to appropriate money for higher education to help cover expenses until the mill levy money recently approved by voters would become available in 1922.

    The members of the Twenty-third General Assembly introduced 632 House bills and 468 Senate bills, enacting 252 of them. During its 91 days of session that year, the General Assembly passed several bills appropriating money for the Agricultural College and its various satellite stations, the Fort Lewis School, Colorado School of Mines, University of Colorado, University of Colorado Medical School, and the State Teachers College of Colorado. Other bills passed included a bill appropriating money for constructing armories for the National Guard or other military forces in Colorado and a bill relating to the National Guard of Colorado, which named the Governor as the Commander in Chief except when the guard was acting on behalf of the Federal Government. The legislature also passed bills that divided the State into four congressional districts, prohibited the practice of clairvoyancy, updated inheritance tax laws, equalized teacher salaries, required the teaching of Colorado history and civil government in public schools, and changed the name of the Grand River to the Colorado River. Several bills establishing game reserves throughout the state passed, as did several bills regarding highway laws, including the creation of the State Highway Department and some “Rules of the Road”. Several water bills passed: One appropriating money for the “Protection of Waters” to investigate and prepare to defend water rights; several authorizing various commissioners to negotiate water rights compacts between Colorado and neighboring states regarding the Arkansas, Colorado, La Plata, Laramie, and South Platte rivers; and several more regarding irrigation districts. The General Assembly passed Senate Concurrent Resolution No. 3 “Submitting to the qualified electors of the State of Colorado the question of holding a convention to revise, alter and amend the Constitution of the State of Colorado”. The ballot question was one of 10 ballot measures voted on in 1922 and lost 63% to 36%.

    The legislature also passed several “relief” bills appropriating money for individuals, including one for Mrs. Edna B. Mulnix whose 11-year-old son was crushed by an elevator at the State Capitol Building the year before. The legislature passed several constitutional amendments, including amendments regarding property rights of aliens, establishing the elections of county officials, putting certain educational institutions under the management and control of the state, and setting terms of office for state officers, all to be voted on by Coloradans at the next general election. The legislature enacted a bill appropriating money for “correct lists” of the battles in which Colorado solders participated and of the names of Colorado soldiers who died or were killed in Civil War battles to be placed on tablets on the Monument to Colorado Soldiers on the west side of the Capitol Building. And the legislature adopted Senate Joint Resolution No. 19, placing a memorial stained glass window for David Halliday Moffat in the Senate chambers. On the last day of session, the House and Senate, between forming conference committees and adopting and rejecting reports and concurring and receding from positions, received “some candy for the lady members and clerks, some cigars for the men and some apples for all” as a show of appreciation and finally adjourned sine die at midnight on April 5, 1921.

    How does this compare to today?

    Luckily, we are not recovering from a devastating world war but we have experienced the devastation of a worldwide pandemic and the emotional and economic hardships resulting from losing family members and closing businesses. It has also been quite the year of social unrest. Based on the legislative leadership’s remarks at the beginning of the 2021 session, the top issues facing the legislature are helping the state recover from the current public health crisis, ushering in a quick economic recovery, getting any stimulus money to those who need it as quickly as possible, and assisting unemployed Coloradans. Other issues include addressing disparities in the health care system, criminal justice reform, law enforcement reform, lowering the cost of living, adequate highways and roads, meeting energy needs, and addressing systemic discrimination. The times may have changed, but many of the issues remain much the same.

    Sources:

    https://lawcollections.colorado.edu/colorado-house-and-senate-journals/

    https://lawcollections.colorado.edu/colorado-session-laws/

    http://www.leg.state.co.us/lcs/ballothistory.nsf/

    https://en.wikipedia.org/wiki/Colorado_Mounted_Rangers

  • Tribute, Resolution, or Memorial – Making the Right Choice

    By Patti Dahlberg

    Editor’s note: This article was originally posted on February 1, 2018, and has been edited as appropriate.

    When legislators wish to show support for individuals or groups, make public statements about issues or concerns, or ask Congress to take action on a matter, they may request a tribute, resolution, or memorial to get the job done. Legislators decide what they wish to do, and the legislative rules direct them how to get it done.

    This handy guide sums up these rules for making the right choice. For example, if a legislator wants to congratulate someone, a tribute is the way to go. It is an appropriate and efficient way to send congratulations to people or organizations or to recognize service to the state. In fact, whenever a legislator wishes to “officially” congratulate, recognize, express appreciation, commemorate, or even create a day of recognition, the rules pretty much scream “tribute”.

    Tributes

    Tributes are non-legislative actions and DO NOT require introduction, calendaring, or floor action.

    Tributes are a very efficient and effective way for legislators to show support for individuals or groups. Legislators are not limited in the number of tributes they may request, but they do need permission from the Speaker of the House or the President of the Senate (depending on the house of origin) before the tribute can be issued. The tribute’s content is unique to each request and is designed to fit the needs of each requestor. It may be short and created fairly quickly, or it may be longer and more detailed (based on information provided by the legislator). Tributes are easier to present to an individual or a group as they can be scheduled around the recipient and legislator’s calendars rather than the legislative calendar.  In addition, they can go on the road—the legislator can conveniently award them anywhere and any time.

    Tributes are personalized and look special. They are printed in a special font, on special paper, and placed in a special folder or, if preferred (and at a slight cost), in a frame for display. Tributes are signed by the Speaker or the President, as appropriate, or, in the case of joint tributes, both.

    House Tributes:

    • The House will not issue a tribute unless the Speaker of the House has given permission;
    • The Chief Clerk of the House maintains copies of each tribute issued for two years.

    Under House Rule 26A, a request should be a tribute if it pertains to any of the following:

    • Offering congratulations for significant public achievement;
    • Recognizing meritorious individual achievement;
    • Expressing appreciation for service to the state or the General Assembly;
    • Recognizing an individual’s service in the military (except in the case of recognizing an individual who died while serving, which may be done by House Resolution or Joint Resolution, see House Rule 26 (a)(2)(C));
    • Extending greetings to prominent visitors to the state;
    • Recognizing or commemorating any individual, organization, or group for a significant event or accomplishment;
    • Congratulating the members of an academic or athletic organization for achieving a specific historical, scientific, educational, or athletic goal, such as winning a league, state, or national title, competition, or championship; or
    • Designating a specified day for observing any of the achievements, events, service, or accomplishments set forth above.

    Senate Tributes:

    • Tributes are signed by the President of the Senate;
    • Tributes are printed in the journal every Friday;

    Under Senate Rule 30A, a request should be a tribute if it pertains to any of the following:

    • Offering congratulations for significant public achievements;
    • Recognizing meritorious individual achievement;
    • Expressing appreciation for service to the state or the General Assembly;
    • Recognizing an individual’s service in the military; or
    • Extending greetings to prominent visitors to the state.

    The House and the Senate Rules state that a request should be a Memorial Tribute or a Joint Memorial Tribute if it expresses sentiment on the death of a person who has not served as a member of the General Assembly (except for the House exceptions listed above regarding military, law enforcement, and firefighting personnel who died while serving) or, in the Senate, meets the exceptions allowed under the rules for Senate Memorials and Joint Memorials in Senate Rule 30 (d).

    All requests for tributes must be submitted to the Chief Clerk of the House or the Secretary of the Senate, as appropriate, or to their designated staff.

    Resolutions

    Resolutions are non-statutory actions but DO require introduction, calendaring, and floor action.

    House Resolutions:

    • Representatives are limited to a total of two resolutions or joint resolutions, unless they receive special permission.
    • Resolutions and joint resolutions must be introduced prior to the last thirty legislative days as required in Joint Rule 23 (g).
    • Upon introduction, they are read into the record by title only and copies are printed.
    • At the discretion of the Speaker, they can either be laid over for one day before being acted on or referred to a committee of reference.
    • No action is taken on the resolution or joint until it is printed.

    Under House Rule 26, House Resolutions or House Joint Resolutions pertain to:

    • Transacting the business of the House or the House and the Senate;
    • Establishing committees comprised of House members or members of both houses;
    • Recognizing an individual member of the armed forces of this country who has died while serving in the armed forces or an individual member of a police, sheriff, or fire department who has died while performing duties for the department;
    • Recognizing a national holiday; or
    • Expressing the will of the House or both houses on a matter not mentioned in House Rule 26A (i.e., not a tribute).

    In addition, but only in the House, pursuant to House Rule 26 (a)(3.5):

    • The Speaker, after consulting with the Majority Leader, may approve up to six resolutions for introduction recognizing or commemorating an individual, organization, or group for a significant event or accomplishment (i.e., which would normally have to be addressed through tributes); and
    • The Speaker, after consulting with the Minority Leader, may approve up to four resolutions for introduction recognizing or commemorating an individual, organization, or group for a significant event or accomplishment (i.e., which normally would have to be addressed through tributes).

    Senate Resolutions:

    • Senators are limited to a total of three resolutions or joint resolutions, unless they receive special permission.
    • Resolutions and joint resolutions must be introduced prior to the last thirty legislative days as required in Joint Rule 23 (g).
    • Upon introduction, they are printed in the journal by title only and copies are printed.
    • At the discretion of the President, they can be acted on immediately, laid over, or referred to a committee of reference.
    • Resolutions and joint resolutions that the Majority Leader identifies as noncontroversial may be placed on the consent calendar.

    Under Senate Rule 30, Senate Resolutions or Senate Joint Resolutions pertain to:

    • Transacting the business of the Senate or the House and the Senate;
    • Establishing investigating committees comprised of Senate members or members of both houses; or
    • Expressing the will of both houses on a matter not mentioned in Senate Rule 30A (i.e., not a tribute).

    All requests for resolutions and memorials must be submitted to the Office of Legislative Legal Services. In 2021, the deadline for requesting resolutions and memorials is Monday, May 10, and the deadline for introducing resolutions is Friday, May 14.

    Memorials

    Memorials are non-statutory actions but DO require introduction, calendaring, and floor action.

    House Memorials:

    • At the discretion of the Speaker, a former member of the House may be admitted to the House floor to address House members regarding the person being memorialized.
    • The House must stand in recess to hear an address by a former member.

    Under House Rule 26, the request is a House or House Joint Memorial if it expresses sentiment on the death of a person who served as a member of the General Assembly.

    Senate Memorials:

    • At the discretion of the President, a former member of the Senate may be admitted to the Senate floor to address Senate members regarding a memorial expressing sentiment on the death of a person who served as a member of the Senate.

    Under Senate Rule 30, the request is a Senate or Senate Joint Memorial if:

    • It expresses sentiment on the death of a person or persons who served as members of the General Assembly, current or former elected State officials, current or former justices of the Colorado Supreme Court, members of Congress, elected officials of other states or of the United States, or foreign dignitaries; or
    • It memorializes the U.S. Congress on any matter.

    All requests for resolutions and memorials must be submitted to the Office of Legislative Legal Services. In 2021, the deadline for requesting resolutions and memorials is Monday, May 10, and the deadline for introducing resolutions is Friday, May 14.

  • Throwback Thursday: Looking Back at 1921 and the Twenty-third General Assembly – Part 1

    by Patti Dahlberg

    If we went back fifty regular legislative sessions and one hundred years, what would we find?

    In Colorado, as a result of the November 1920 election (the first national election in which women were able to vote), Republicans retained control of the Colorado House of Representatives with 58 Republicans to seven Democrats, and Democrats lost control of the Colorado Senate with 24 Republicans to 11 Democrats.

    Coloradans passed four ballot measures:

    Six ballot measures failed:

    • Four initiatives: “Practice of chiropractic and providing for the regulation and licensing thereof”, “Creating the County of Limon”, “Creating the County of Flagler”, and “Providing for the construction of the Moffat, Monarch, and San Juan tunnels and a bond issue therefor”; and
    • Two referred measures: “Increasing the salaries of the Governor, the Secretary to the Governor, Justices of the Supreme Court, and judges of the district courts” and “Increasing the number of county judges”.

    So what was the economic, political, and social climate in America leading up to the 1921 legislative session?

    In September of 1920, America suffered the worst terrorist attack in its history (at least until the 1995 Oklahoma City Bombing) when a large explosive on a horse-drawn carriage was detonated on a busy Wall Street corner. The explosion killed 38 people and injured hundreds of others. In Colorado, the Denver Tramway Strike of 1920 left seven people dead and 50 injured. The Ku Klux Klan, founded during Civil War Reconstruction and known for violence against Blacks, reemerged in the 1920s and started targeting immigrants and certain religious organizations. The Klan tied their messages to the issues of prohibition and clean living. Finding a more mainstream audience as a result, they became involved in local and state politics in many states. Several race riots took place across the country, most notably the Tulsa race massacre where mobs of white residents destroyed 35 square blocks of a predominantly Black business district, leaving at least 35 people dead, and more than 800 people hospitalized. Historians now believe that up to 300 people may have died due to the violence.

    On a brighter note, women won the right to vote when the 19th Amendment was ratified by two-thirds of the states on August 18, 1920, (Colorado ratified the 19th Amendment on December 15, 1919, during a special legislative session) and in the November election, Colorado elected three women to serve in the Colorado House of Representatives. Colorado actually initiated female representation in its House of Representatives in 1895 when the citizens elected Clara Cressingham, Carrie Holly, and Frances Klock. The electronic news media was born when a Pennsylvania radio station began airing regular news broadcasts.

    The economic prosperity and freewheeling social spirit associated with the Roaring Twenties started with a struggling economy. The Spanish flu pandemic killed around 675,000 Americans (50 million people worldwide) before it was all over. A great number of the flu deaths were among working-age adults, and economists have suggested that the flu was responsible for a six to eight percent decline in worldwide gross domestic product. In addition, the adjustment from a wartime to peacetime economy proved to be a shock to the U.S. economy. Factories had to shut down completely or shut down until retooled to produce other products. Another factor that may have contributed to the economic downturn was a surge in the civilian labor force created when the troops returned from the war, adding to unemployment numbers and wage stagnation. In 1918, the Armed Forces employed 2.9 million people, which fell to 380,000 by 1920. As Europe recovered from war devastation, its agricultural output increased, causing a decline in American agricultural commodity prices. The Dow Jones hit a peak of 119.6 on November 3, 1919, only to spiral downward for the next 20 months, finally bottoming out at 63.9 (a 47% decline) on August 24, 1921. 1920 was a terrible year for businesses; those that did not fail saw huge declines in profits. All these factors combined to cause a deflationary recession, later known as the Depression of 1920-1921, lasting from January 1920 to July 1921.

    In Colorado, probably few people anticipated the economic impact the end of the war would have on our state. After all, the farming and mining industries, which had ramped up production to meet wartime demand, enjoyed an initially strong post-war market demand. But as Europe recovered and Europeans became less dependent on America for food and other products, prices fell and food producers found themselves hard pressed, especially on the plains of northeast Colorado. They had borrowed heavily to expand and cash in on the wartime bonanza. As returns diminished, debts were more difficult to service, and Coloradans were hurting.

    In the second part of our look back at 1921 and the Colorado Legislature, we’ll take a closer look at the start of the 23rd General Assembly and how it met the challenges of its time.

    Sources:

    http://www.strongsisters.org/the-elected-women/

    http://www.leg.state.co.us/lcs/ballothistory.nsf/

    https://www.britannica.com/event/Wall-Street-bombing-of-1920

    https://coloradoencyclopedia.org/article/denver-tramway-strike-1920

    https://www.pbs.org/wgbh/americanexperience/features/flood-klan/

    https://en.wikipedia.org/wiki/Depression_of_1920%E2%80%931921

    1921 Tulsa Race Massacre

     

     

  • Contracting for the Publication of the Colorado Revised Statutes

    by Jennifer Gilroy

    Have you ever stopped to wonder how those pretty red statute books, the Colorado Revised Statutes, are published? As you can imagine, it’s very important that citizens have access to the law. So important, in fact, that the state constitution requires the General Assembly to publish the laws it passes at each legislative session. The General Assembly satisfies this requirement by annually publishing the Session Laws of Colorado, a three-volume set of books in which every bill enacted during a legislative session is published.

    In addition, the statutes that are created, amended, or repealed in each of those bills are then codified by subject matter in the collective body of Colorado law known as the Colorado Revised Statutes (CRS)—the previously mentioned red books on your book shelf and at public libraries and courthouses. There are 26 volumes including a two-volume index and a two-volume publication of the Colorado Court Rules.

    The legislature’s Office of Legislative Legal Services (OLLS) prepares the databases for both the Session Laws and the CRS, by making the necessary changes in the former year’s CRS database to reflect the additions, changes, and repeals resulting from the work of the General Assembly during the legislative session.  The work of the OLLS in preparing the CRS also includes drafting the history (or “source”) notes, the editor’s notes, and the annotations of relevant appellate court opinions for each statutory section of law. Once the OLLS has completed compiling the Session Laws and the CRS—which takes a lot of meticulous work and time (the law needs to be published accurately!)—the OLLS sends the giant databases to the contract printer to format, print, bind, and distribute. But who is the contract printer, how is the contract printer selected, and when?

    Like most things, the actual printing of the Session Laws and CRS are governed by state statute. The statute requires that the contract must be bid and awarded in a manner directed by the Committee on Legal Services (Committee), a bipartisan committee of ten legislators, five each from the Senate and the House of Representatives. The Committee must employ standard bidding practices to select the contract printer. Historically the Committee has done so through the use of a request for proposals or “RFP” process.

    The governing statute also sets some limits on the contract. For example, the term of the contract may not exceed five years.  The statute allows a contract to be extended once for up to five more years, but requires the contract to be rebid no less frequently than every 10 years.  Since 2002, the Committee has awarded the print contract to LexisNexis out of Charlottesville, Virginia. The contract awarded to LexisNexis in 2002 was for five years, and the Committee extended it in 2007 for an additional five years.  In 2012, the Committee put the print contract out to bid as required by the statute, and the Committee awarded a five-year contract to LexisNexis. That contract was extended for an additional five years in 2017.

    So now another 10 years have lapsed, and the Committee must once again put the print contract out for bid because the current extension will expire December 31, 2022. The RFP process is lengthy and requires a significant amount of the Committee’s time. Therefore, meetings for the OLLS to advise the Committee about the RFP process, for the Committee to review the RFP before it is published, and for the Committee to meet with those who submitted proposals and select a contract printer must begin sooner than later. The Committee will have its first meeting to address the publications contract on March 25, 2021, with more meetings to follow over the summer and fall months. Once the Committee selects a contract printer, the OLLS will negotiate the actual terms of the contract with the successful bidder and draft the contract. The statute requires the state controller and the attorney general to approve the contract, and, ultimately, the contract must be executed by a representative of the selected contract printer and the chair of the Committee.

    It’s a long and time-consuming process but one that is intended to provide fairness, transparency, and reliability in the quality of the final products: The Session Laws and the Colorado Revised Statutes.

  • Privacy Laws and the Free Speech Clause of the First Amendment

    by Jery Payne

    Should a state be able to pass laws protecting people’s privacy? Should the constitution protect a person’s right to freedom of speech? If you think the answer to both is “yes,” then you might be surprised to learn that those two goals can conflict.

    In 2007, Vermont passed a prescription­-confidentiality law, which forbade pharmacies from gathering and selling, for marketing, information detailing the prescriptions written by doctors. This law didn’t regulate the release of patient information; it was concerned with what prescriptions doctors were writing. This information is valuable because the drug companies can use it to market drugs to the doctors that are actually treating the types of patients the drugs may help.

    This law riled up drug manufacturers and data miners, who filed a lawsuit, Sorrell v. IMS Health Inc., in a United States district court. The lawsuit wended its way to the United State Supreme Court, which struck down the law based on the Free Speech Clause of the First Amendment to the United States Constitution. The Court had two main concerns:

    (1) The law was content-based, which means one has to look at the information to know if the law applies. When a law is content-based, the courts will normally consider it suspect under the First Amendment’s guarantee of freedom of speech, and this means that it’s unlikely to survive a challenge.

    (2) The law discriminated against certain users of the information. The Court was concerned that the law discriminated against people who would use the information to market drugs. That is, the pharmacies could sell the information to any person that wasn’t a drug manufacturer or marketer. Now, drug companies are the primary market for this information, but maybe a company that provides medical alternatives to drugs would be interested in the same information. The Court considered this fatal to Vermont’s claim that it was protecting the doctors’ privacy. If the law allowed broad communication of information except for one group of people, the Court thought that it didn’t really protect privacy. The Court contrasted this with the Health Insurance Portability and Accountability Act of 1996, which generally forbids the release of patient information:

    For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e.g., Health Insurance Portability and Accountability Act of 1996 …. A statute of that type would present quite a different case than the one presented here.

    In the holding, the Court also explained:

    This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. … [I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category….

    This case developed our understanding of the Free Speech Clause; that it not only affects laws that disseminate information, but it also affects laws that forbid creating or gathering information.

    In 2015 and 2016, Wyoming passed and amended a statute that made it illegal for a person to cross “private land to access adjacent or proximate land where he collects resource data” without the owner’s permission or other types of legal authority. I expect many of you may be wondering, “What does ‘resource data’ mean?” The statute, section 6-3-414, defined the term as “data relating to land or land use, including … data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species.” So the law applied broadly and aimed at protecting the privacy of landowners.

    In a case named Western Watersheds Project v. Michael, the 10th Circuit Court of Appeals more or less overturned the Wyoming law for violating the Free Speech Clause of the First Amendment. The appeals court was following Sorrell.

    If the law had merely forbid crossing private land, there wouldn’t have been a problem. The court explained that there is no “First Amendment right to be exempt from an otherwise generally applicable law in order to facilitate speech indirectly limited by the [law].” The state may forbid trespass although it would stop you from having your say on someone else’s land. This is because the law has a legitimate purpose that isn’t directly related to speech.

    But the Wyoming law didn’t merely forbid trespass; the law forbade trespass for the purpose of getting resource information. The law was content-based; you had to know what type of data was collected to know if the law applied. According to the Court, “The challenged statutes apply specifically to the creation of speech,” and thus “are subject to the First Amendment.”

    The lower court had dismissed the lawsuit upon summary judgment, which means that there hadn’t actually been a trial yet. So the appeals court stopped short of striking down the law. But the appeals court ruling made it extremely unlikely that the law would survive. As expected, the district court ended up declaring the law unconstitutional.

    Colorado and Wyoming are in the same judicial circuit, so this ruling applies in Colorado. So when thinking about a law to protect privacy, we would do well to be careful when (1) the law applies to obtaining only certain types of information or when (2) it’s aimed at one particular group. The first may be considered content-based and the second may be considered forbidden discrimination. It might seem better to narrowly tailor a law to apply only to the information we care about or to the group that wants the information, but either strategy may cause a court to hold that the law violates the Free Speech Clause of the First Amendment.