Colorado LegiSource

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

Author: olls

  • Federal Law as Law of the Land: Federal Preemption

    Editor’s’note: With all of the recent action at the federal level to provide COVID-19 relief, we though now might be a good time to repost a recent article explaining the interaction between state and federal laws. This article was originally posted August 8, 2019.

    by Samantha Bloch

    The United States is a federal system in which federal laws and state laws coexist. But what happens when state law conflicts with federal law?

    The short answer is that “state laws that conflict with federal law are ‘without effect’.” This is the doctrine known as federal preemption, which is based on the Supremacy Clause of the U.S. Constitution. This clause creates a hierarchy of laws in which the U.S. Constitution is at the top, followed by acts of Congress and ratified treaties, and ending with state laws. Its purpose is to ensure that states don’t pass laws that undermine the goals of the United States.  While a state could pass a law that conflicts with a ratified treaty, this blog post will focus only on conflicts between state and federal law.

    The U.S. Constitution establishes a strict division of legislative authority between the federal government and the states in certain matters. For example, most foreign affairs issues and some aspects of the regulation of interstate commerce are reserved to Congress. Under the Tenth Amendment, powers not delegated to the federal government or prohibited to the states are reserved to the states. However, the U.S. Constitution also provides room for concurrent powers: legislative powers that both Congress and the states may exercise.

    One such power, the power to tax, is usually not subject to federal preemption. For all other concurrent powers, if there is direct conflict between a state law and a federal law, courts will invalidate state law under the Supremacy Clause. But when exactly does a state law enter into direct conflict with a federal law?

    The first element that needs to be present is a federal law regulating the activity that is the subject of the state law. The existence of such a law is, however, not enough. Courts pay particular attention to whether it was Congress’s purpose to supersede any conflicting state law. In the presence of concurrent powers, the Supremacy Clause does not limit the federal government’s power to preempt. But it is necessary for Congress to specifically exercise this power if it wants to effectively limit states’ legislative authority. A federal agency acting within the scope of the authority delegated to it by Congress also has the power to preempt state measures.

    Two concepts are useful in determining the preemption purpose of a law or regulation: express preemption and implied preemption.

    Express preemption is the most direct expression of Congress’s or an agency’s purpose. This form of preemption exists when a federal statute or regulation contains explicit language stating that it intends to preempt all state law regulating the activity that is the subject of the statute. The 2018 Restoring Internet Freedom Order issued by the Federal Communications Commission provides a recent example of an express preemption clause. It states that it “preempt[s] any state or local measure that would effectively impose rules or requirements that [it] has repealed or decided to refrain from imposing … or that would impose more stringent requirements for any aspect of broadband service that [it] addresses.” This renders all attempts by states to impose net neutrality obligations on internet service providers futile since the order would automatically trump any state measure attempting to impose additional or more rigorous requirements.

    Implied preemption occurs when federal law does not explicitly state that it intends to preempt all conflicting state law but it is still possible to determine that Congress or an agency intended to preempt state law in that particular area. This is the case, for instance, when it is impossible to comply simultaneously with the federal law and the state law or when state law interferes with the objectives of the federal law. For example, a state cannot pass laws regulating air and water if they interfere with any goals or requirements established by existing federal environmental laws.

    Implied preemption also includes the concept of field preemption. Field preemption exists when Congress has so broadly regulated a certain field of law that it implicitly must have chosen to prevent states from effectively legislating in that area. An example of this is U.S. immigration law, which is a field exclusively occupied by federal laws and regulations.

    In an implied preemption analysis, courts presume that Congress intended to defer to states in matters of traditional state action. For example, when states are legislating, within their historic police powers, there is a presumption that Congress’s purpose was to not supersede state measures unless there is a clear and manifest purpose to the contrary. Therefore, a court will only invalidate a state law in a field traditionally occupied by state measures in the presence of an express preemption clause.

    In the absence of federal law, or when Congress has not expressly or impliedly barred states from passing legislation to regulate certain activity and provide broader protections or benefits than what is available under existing federal law, state laws are usually valid. Except, of course, when they don’t comply with other constitutional obligations. In fact, the “dormant” Commerce Clause doctrine prevents states from passing measures that discriminate against or unduly burden interstate commerce, even in the absence of conflicting federal legislation. That, however, is a subject for an other blog post.

  • United States Supreme Court Equates Annotators to Legislators and Judges

    By Michele Brown

    In a case that began in Georgia in 2017, the U.S. Supreme Court concluded last Monday that copyright protection for original works of authorship does not extend to the annotations included in Georgia’s official annotated code.

    As background, the State of Georgia sued Public.resource.org (PRO) after PRO purchased a copy of the Official Code of Georgia Annotated (OCGA) and posted it online in its entirety. The District Court for the Northern District of Georgia determined that the Georgia statutory annotations were, in fact, original works entitled to broad copyright protection.

    However, PRO, an organization whose mission is to increase access to government materials, appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit). The question before the Eleventh Circuit was whether to treat the annotations in the OCGA in the same manner under copyright law as a legislative enactment or a judicial opinion. It is uncontested that legislative enactments and judicial opinions are not copyrightable, because they represent the exercise of sovereign power and are therefore considered part of the public domain. This policy is referred to as the government edicts doctrine. In October of 2018, the Eleventh Circuit concluded that the OCGA annotations were sufficiently “law-like” to be regarded as a sovereign work and therefore not copyrightable. For more in-depth explanations of the facts and issues in this case, see our earlier LegiSource articles published April 2017 and December 2019.

    Georgia appealed that ruling to the highest court and, on April 27, the Supreme Court released its 5-4 decision, split along unusual lines. Chief Justice John Roberts wrote the majority opinion, joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh.

    The Supreme Court upheld the decision of the Eleventh Circuit but for different reasons.  Instead of examining whether written material carries “the force of law,” the Court instead focused on whether the author of the work is a judge or a legislator, observing that, whatever work that judge or legislator produces in the course of judicial or legislative duties is not copyrightable. Under the government edicts doctrine, judges and legislators are not considered the authors of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether the written material carries the force of law. And, according to the Court’s majority opinion, it applies to the annotations because they are authored by an arm of the legislature in the course of its official duties.

    Justice Clarence Thomas dissented, joined by Justice Samuel Alito and for the most part by Justice Stephen Breyer, arguing that Georgia’s annotations do not purport to embody the will of the People because they are not the law. Georgia’s General Assembly does not enact statutory annotations under its legislative power.

    The core question for Justice Ruth Bader Ginsberg, joined in her dissent by Justice Breyer, was whether Georgia’s annotations are created in a legislative capacity. Her answer? “No.” The role of the legislature encompasses the process of making laws—not construing statutes after their enactment. Justice Ginsberg observed that annotating begins only after lawmaking ends. In her view, annotations are descriptive rather than prescriptive, and they merely provide the public with convenient references.

    As noted in a previous LegiSource article, the outcome of this case does not directly affect Colorado. In 2016, the Committee on Legal Services suspended the practice of copyrighting the annotations to the Colorado Revised Statutes. The Committee recognized that, unlike most states, Colorado’s nonpartisan legislative staff in the Office of Legislative Legal Services writes the annotations. Because the annotations are the product of state-paid legislative staff and are available at no cost on the Colorado General Assembly’s public access website, the Committee elected to suspend the historical practice of registering a copyright in the editorial work of the legislative staff, including the annotations.

  • Legislative Ethics – Public Disclosure and Reporting Requirements

    Part 2 of article 6 of title 24, C.R.S., otherwise known as the “Public Official Disclosure Law”, outlines requirements for the disclosure and reporting by public officials, including members of the General Assembly, of certain types of information. Section 24-6-202, C.R.S., largely concerns the disclosure of financial information, such as sources of income; businesses in which the legislator holds a financial interest; interests in property; the identification of all offices, directorships, and fiduciary relationships the legislator holds; and significant creditors of the legislator. Disclosure extends to the legislator’s immediate family. Financial disclosure must be made within 30 days after the legislator’s election or reelection, and each legislator must file an amended statement on or before January 10 of each calendar year.

    The reporting of gifts, honoraria, and other benefits that an incumbent or a candidate elected to public office receives in connection with his or her public service is the subject of section 24-6-203, C.R.S. Section 24-6-203 (3), C.R.S., lists certain items that the legislator must report, and section 24-6-203 (4), C.R.S., lists other items that the legislator need not include in his or her report. Gift and honoraria must be reported quarterly. If a legislator does not receive any of the covered items, he or she need not file a report. Legislators must file reports under both statutory sections with the secretary of state’s office.

    The subject of disclosure of reimbursement for travel expenses is addressed in section 24-6-203 (3)(f) and (4)(d), C.R.S.  Legislators must disclose reimbursements for travel if the reimbursement comes from a financial source other than public funds of a state or local government or from the funds of an association of public officials or public entities whose membership includes the member’s office or the General Assembly.

    Seems easy enough. Here are some hypothetical situations for your consideration:

     Situation #1. You are a member of the General Assembly. Following a very stressful session of the General Assembly, you had to endure painful foot surgery, which you postponed during the session. Your doctor has instructed you to stay off your feet for 3 weeks to let your foot properly heal. A longtime friend who has known you since long before you commenced your political career has offered the use of her condominium in a mountain town for your extended use. The offer comes with the assistance of a housekeeper who will prepare your meals. The relationship you enjoy with the donor is strictly personal, and the donor has never expressed any interest in the public business that you address as a legislator.

    Are you required to disclose the gift of the use of the condominium?

    1. There is no need for disclosure because you cannot accept your friend’s offer. Now that you are elected to the General Assembly, you should never accept a gift from anyone at any time for any purpose.
    2. Since you probably can’t accept the gift under Amendment 41, there is no gift to accept and, therefore, to disclose under the Public Official Disclosure Law (“PODL”).
    3. Since the donor is a long-time friend, no one would think anything improper about receiving a gift from that person and therefore there is no need to disclose such gift.
    4. A gift from a long-time friend of the use of a condominium to assist in one’s recovery from surgery is not given in connection with the member’s public service. Accordingly, the member is not required to disclose the gift.

    The correct answer is 4. Section 24-6-203 (2), C.R.S., requires disclosure of gifts given in connection with the member’s public service. In this case, the donor was a long-time friend who gave you the use of the condominium while you were recovering from surgery. The relationship you enjoy with the donor is strictly personal, and the donor has never expressed any interest in the public business that you address as a legislator. For these reasons, it does not appear the gift was given in connection with public service, which means you have no obligation to disclose it under section 24-6-203 (2), C.R.S.

    Situation #2. You are the chair of an interim legislative committee formed to study the conversion of outdated shopping malls to alternate uses. A private non-profit foundation promoting this type of development by the name of STOP (for “Start Transferring Open Parcels”) has put together a trip for legislators from across the nation to study successful conversion projects in a dozen different cities. STOP wants to reimburse you for your reasonable travel expenses involved in participating on the trip. STOP receives less than 5% of its revenue from for-profit entities.

    Are you required under the Public Official Disclosure Law (“PODL”) to disclose the reimbursement you will receive for these travel-related expenditures?

    1. As it doesn’t look like you would be able to accept reimbursement for the trip under Amendment 41, you shouldn’t go, making disclosure of this reimbursement a moot point.
    2. Since the reimbursement is coming from the funds of a nonprofit entity that is not an entity whose membership includes your office or the General Assembly, you are required to disclose your acceptance of it.
    3. This trip sounds like one of those “junkets” that is the source of much criticism. Accordingly, if you go, you should disclose it if only for the sake of preventing an appearance of impropriety.
    4. The work STOP does is really important to your constituents. There are three old and decaying shopping malls in your district alone. You feel a strong need to join the trip to learn how to generate the process of conversion in Colorado. This is such a boring issue and the sights are so depressing — why would anyone think a member would be going on this trip if he or she didn’t feel the issue was so important?

    The correct answer is 2. Under section 24-6-203 (3)(f) and (3)(d), C.R.S., reimbursement for travel must be disclosed if payment of the reimbursement comes from a financial source other than public funds of a state or local government or from the funds of an association of public officials or public entities whose membership includes your office or the General Assembly. In this case, because STOP, the nonprofit organization making payment to you for your travel expenses, does not meet these criteria, the reimbursement must be disclosed under the PODL.

    For more LegiSource articles on public disclosure and reporting requirements, see:

    Click here for other LegiSource articles regarding ethics.

  • Throwback Thursday 1920 – A Year of Presidential Intrigue

    By Patti Dahlberg

    America had a woman president? Many think so.
    Late in September of 1919, while in Pueblo, Colorado on a cross-country public speaking tour in support of ratifying the Treaty of Versailles with its formation of a League of Nations, President Woodrow Wilson suffered a “mini-stroke.” The remainder of his train stop tour was immediately canceled, and he was rushed back to Washington, D.C. for tests and recuperation. A few days later, on October 2, the President suffered a severe stroke, which left him paralyzed on his left side, unable to speak, blind in his left eye, and only partial vision in his right eye. He was confined to bed for the next few weeks and kept away from everyone except his wife and doctor. Edith Bolling Galt Wilson, President Wilson’s second wife, stepped in to “help him” run the government from his bedside. In the process of “protecting” her husband from unwanted stress and malicious gossip, she also excluded his staff, his Cabinet, and the Congress. Although surrounded by a “shroud of secrecy,” reports of the President’s stroke began to appear in the press in February of 1920. The extent of the President’s disability and his wife’s management of presidential affairs, however, was not fully known by the press nor shared with the nation. Several months later, the President, confined to a wheelchair, began to make public appearances again, giving an outward appearance of normalcy. Wilson did eventually walk again with the use of a cane, but many of those close to him felt he was only a shadow of his former presidential self.

    President Wilson’s health condition and probable inability to act as chief executive officer of the nation was considered by many as one of the greatest cover-ups in the history of the American presidency. During his recuperation, the First Lady would regularly review pending legislation and executive documents – becoming to some historians, the “de facto” acting president. She selected those matters that would get her husband’s personal attention and delegated the rest, without consulting him, to the members of his Cabinet to handle. Many considered her a sudden upstart, but she had been working at her husband’s side since America’s entry into World War I in April of 1917. She and the President worked together from a private, upstairs office where he gave her access to his classified document drawer and secret wartime codes. Wilson had her screen his mail and insisted she sit in on his meetings. She regularly provided him with assessments of political figures and foreign representatives and denied his advisors access to him if she determined he should not be disturbed. She was by his side in Europe as he helped negotiate the Treaty of Versailles and presented his vision of a League of Nations to prevent future world wars.

    Nevertheless, the First Lady did mislead the nation by releasing carefully worded press releases that only acknowledged that the President needed rest and was working from his bedroom suite. Meanwhile, anyone wishing to confer with the President was stopped at the door by the First Lady. It was months before more than a handful of people could even testify to the President’s physical existence. Rumors flourished, questions went unanswered, and the President’s staff and cabinet were disgruntled and worried. If cabinet members or staff had papers for review, Mrs. Wilson would review the material, and only if she deemed the matter pressing would she take the paperwork to her husband for his review. Officials cooled their heels waiting in the West Sitting Room hallway until she returned with their paperwork with margin notes said to be from the President.

    Edith Wilson steadfastly insisted that her husband performed all of his presidential duties after his stroke, stating in her 1938 autobiography, “My Memoir:”

    Historians, however, believe that Mrs. Wilson acted as more than “steward.” They believe she was, essentially, the nation’s chief executive until her husband’s second term concluded in March of 1921.

    Part of the issue preventing Congress or the Vice President from stepping in at the time was that clear constitutional guidelines did not yet exist regarding the transfer of presidential power when severe illness strikes the chief executive. Article II, Section I, Clause 6 of the U.S. Constitution regarding presidential succession states:

    President Wilson was not dead nor willing to resign because of his health. Vice President Thomas Marshall refused to assume the presidency unless Congress were to declare the President incapacitated and then only if Mrs. Wilson and Dr. Grayson went along. That never happened. It would take ratification of the 25th Amendment to the Constitution in 1967 before a more specific process for the transfer of power in the event of a presidential disability became law. Some believe, because of modern medicine, that even the 25th Amendment is not clear enough regarding presidential succession and needs additional revision.

    What? Did you say SIX past, present, or future presidents took part in the 1920 election?
    Privately looking for an unprecedented third term, President Wilson (28th President, 1913-1921) hoped to be his party’s nominee, but party leaders were unwilling to re-nominate the ailing president still recovering from his severe stroke. Former President Theodore Roosevelt (26th President, 1901-1909), looking to be president again, was an early front-runner for his party’s nomination, but he died in 1919. With both Wilson and Roosevelt out of the running and leaving no obvious “heir apparent” for their respective parties, the Democrats and Republicans looked to lesser-known candidates.

    Warren G. Harding (29th President, 1921-1923), a U.S Senator and newspaper editor from Ohio and considered a compromise candidate, won the Republican Party nomination on the tenth ballot at its national convention. Massachusetts Governor Calvin Coolidge was chosen to be the vice-presidential candidate. When President Harding died in 1923, Calvin Coolidge succeeded to the presidency and won re-election in 1924 (30th President, 1923-1929).

    James M. Cox, Governor of Ohio, won the Democrat Party’s nomination on the 44th ballot at its national convention. Future President Franklin D. Roosevelt (32nd President, 1933-1945) and Wilson supporter, was chosen to be the vice-presidential candidate.

    Future President Herbert Hoover (31st President, 1929-1933) initially sought to avoid committing to any party during the 1920 election, hoping that either major party would draft him for president in their respective national convention. In March of 1920, however, he changed his strategy and declared himself to be a Republican, but it was to no avail.

    Not to be left out – one presidential candidate runs his campaign from prison.
    Warren G. Harding was elected to the presidency by a landslide on November 2, 1920, with 60% of the popular vote and 75% of the electoral vote. However, in that same election, socialist, political activist, labor union organizer, and former Indiana State Senator Eugene V. Debs managed to collect more than 919,000 votes for the Socialist Party ticket, despite campaigning from the Atlanta, Georgia prison where he was serving a ten-year sentence for violating the wartime Espionage Act in 1918 by giving an antiwar speech.

    Debs ran as the Socialist candidate for president five times – 1900, 1904, 1908, 1912, and 1920. President Harding, taking Debs’ deteriorating health into account, commuted his sentence in 1921. After a brief stop at the White House, Debs returned home to Terre Haute, Indiana, where he was met by band music and a crowd of 50,000. In 1924, he was nominated for the Nobel Peace Prize for his work for peace during World War I. He tried to recover his health, but died from heart failure on October 26, 1926, at the age of 70.

    Resources:

    https://www.pbs.org/newshour/health/woodrow-wilson-stroke

    https://www.biography.com/news/edith-wilson-first-president-biography-facts

    https://www.historynet.com/big-lie-woodrow-wilsons-sham-presidency.htm

    https://www.loc.gov/collections/world-war-i-and-1920-election-recordings/articles-and-essays/from-war-to-normalcy/presidential-election-of-1920/

    https://www.britannica.com/event/United-States-presidential-election-of-1920

  • Supreme Court Finds General Assembly “Reasonable” in Counting Only Working Calendar Days

    By Julie Pelegrin

    As reported earlier, the General Assembly recently asked the Colorado Supreme Court to tell them whether, during a statewide public health declared disaster emergency, the General Assembly is allowed to determine the length of the regular legislative session by counting only “working calendar days” rather than consecutive calendar days. Because the General Assembly is currently in a temporary adjournment, this question of how to count the days is key to scheduling the remainder of the 2020 regular legislative session.

    Last Wednesday, the Supreme Court published its answer: Only working calendar days, “i.e., calendar days when at least one chamber is in session”, will count in determining the length of the session when the General Assembly is operating under a declared public health disaster emergency.

    As we previously explained, the voters amended the provisions of article V, section 7 of the Colorado Constitution (section 7) in 1982 to limit the length of the legislative session in even-numbered years to 140 “calendar days” and in 1988 to limit the length of all regular legislative sessions to 120 “calendar days.” The General Assembly adopted Joint Rule 23 (d) to clarify that “calendar days” are to be counted consecutively and in 2009 adopted Joint Rule 44 (g) to make the very limited exception for counting “calendar days” as only the working calendar days if the General Assembly meets in regular legislative session during a declared public health emergency.

    The Supreme Court’s decision was a 4-3 vote, so the answer was by no means a slam dunk. The analysis turned on whether the phrase “calendar days” used in the constitution is ambiguous or whether it plainly requires the calendar days to be counted consecutively from the first day of the legislative session.

    Justice Marquez, writing for the majority, concluded that the phrase is ambiguous. The Court considered the plain meaning of calendar days (i.e., days running from midnight to midnight) and the fact that the text of section 7 does not specify that calendar days are to be counted consecutively. It concluded that section 7 “may just as reasonably be construed to allot a sum of days during which the General Assembly may meet in regular session – continuously or not – to complete its work, so long as the total does not exceed 120 calendar days.”

    The Court also analyzed Joint Rule 23 (d) and Joint Rule 44 (g), first noting that, like statutes, legislative rules are presumed to be constitutional unless proven to be unconstitutional beyond a reasonable doubt. The Court specifically looked to whether the legislative rules were true to both the text and the purpose of the limitation on the length of the legislative session.

    The Court identified the purpose of the limitation as being to both preserve the Colorado tradition of a part-time citizen legislature and ensure sufficient time for the General Assembly to complete the critical work of legislating for the people of the state. The Court then concluded that the legislative rules support these purposes by defaulting to 120 consecutive days in all but the rarest of situations while allowing the General Assembly the necessary flexibility and time to legislate in response to a disaster emergency. Having already found that the text did not require calendar days to be counted consecutively, the Court held that Joint Rule 23 (d) and Joint Rule 44 (g) are consistent with the text and support the purposes of section 7 and, in combination, are a reasonable interpretation of section 7. As such, the rules are constitutional.

    As stated previously, this decision was a close call. Three of the seven justices dissented from the majority decision. Although the dissent acknowledges that the state is operating in “unprecedented times”, it cites to precedent stating, “there has never been, and can never be, an emergency confronting the state that will warrant the servants of the Constitution waiving so much as a word of its provisions.”

    In the view of Justice Samour, who wrote the dissent, section 7 is not at all ambiguous. By specifying calendar days, the provision can only mean consecutive calendar days. Justice Samour looked to the dictionary definition of “calendar day” as a consecutive 24-hour day running from midnight to midnight, and concluded that 120 calendar days must be equal to a total of 2,880 consecutive hours (120 x 24 = 2,880). The dissent also looked to the use of “calendar days” in the statutes, finding that in every instance it means consecutive calendar days even though the word “consecutive” is not included in most cases. And, when the General Assembly means something other consecutive calendar days, the statute uses another term, such as “business days.”

    The dissent also argued that, even if section 7 is ambiguous, by adopting Joint Rule 44 (g), the General Assembly is in essence amending section 7. And the General Assembly cannot by rule or statute amend the constitution; only the people can do that.

    Finally, the dissent feared the majority opinion opens a “Pandora’s Box,” setting a precedent that future legislatures may abuse. While concerns about how a future legislature may apply the majority opinion may be well-founded, there is language in the majority opinion that arguably limits how far a future legislature can go in interpreting section 7 as allowing something other than consecutive calendar days.

    The majority decision is narrowly written and does not give the General Assembly carte blanche to change the counting of calendar days in any circumstance it chooses. The Court made the point that the very limited conditions under which only working calendar days are counted are outside the control of the General Assembly and specifically stated that “a broader rule untethered to an external event such as a public health crisis or otherwise readily susceptible of legislative manipulation would be less likely to further the purposes of article V, section 7 and could be unconstitutional.”

    So, while it is clear that so long as the current public health disaster emergency continues the General Assembly can count only the working calendar days in calculating the 120 calendar days of the 2020 regular session, its ability to do so under different circumstances in the future remains questionable.

  • How Did We Get Here? Tips for Researching Legislative History

    Editor’s note: This article was originally posted December 10, 2015. It has been updated for the 2020 Legislative Session.

    by Julie Pelegrin

    As legislators, lobbyists, and stakeholders are working through this session’s bills, many may wonder, “Is this really a new idea, or has someone tried this before?” Or maybe someone’s looking to strengthen an existing statute and wondering, “When did they first pass this statute, and has it always had these problems?” The answers to these questions are easily found with just a bit of research. The key is knowing where to look.

    Bill Title Histories

    Every bill introduced in every regular and special legislative session since 1997 is available on the General Assembly’s website under the “Bills” tab. For 2016 to the present session, use the search box in the blue bar to search for a bill by the bill number, sponsor name, or keywords. If you’re not looking for a specific bill, you can also take a look at the bills that are sparking the most interest in the “Most Accessed Bills” box.

    Or you can look at groups of bills by general subject area in the “Browse by Subject” box. Only bills from the current or most recent session will appear from the initial search, but you can use the new search box that appears above your search results to find bills from a different year by subject area, going back to 2016:

    In the “Session” box you can use the arrow menu to choose “All” to create a list of bills from 2016 to the present in one search.

    For bill information from legislative sessions before 2016, click on “Prior Sessions” in the “BILLS” pull down menu at the top of the page or click on the “Prior Sessions” icon toward the bottom of the “Bills” page.

    The bills are organized by year, and the database of each year’s bills is searchable.

    Once you choose the year you wish to search, you can search for a keyword or phrase by clicking “Search” near the top of the page.A legislator may also ask an Office of Legislative Legal Services (OLLS) drafter to search the OLLS database of bill and resolution titles, which goes back to 1999. This search identifies bills and resolutions that included a particular term or phrase in their titles.

    Legislative History

    Just knowing whether a bill has been introduced to address your topic is not enough. It’s also helpful to know how the bill was amended, who testified for or against it, what issues were debated, and whether the bill passed. This information is also available, but it may take a bit of digging.

    For bills introduced from 2016 to the present, once you find the bill you wish to research, use the bar below the “Status” bar to access:

    • “Bill Text” – all versions of the bill;
    • “Fiscal” – all versions of the fiscal note written for the bill;
    • “Committees” – all of the committee reports on the bill, including the vote tallies for each report;
    • “Votes” – House and Senate floor votes on the bill;
    • “Amendments” – any amendments offered and whether the amendment passed (only available for bills starting in 2019); and
    • “Bill History” – the history of the bill, which lists the committees the bill was assigned to, each action taken on the bill, and the date of each action.

    For prior session bills (1997 to 2015), once you find the bill you wish to research, click on the designated links to access:

    • All versions of the bill;
    • The history of the bill, which lists the committees the bill was assigned to, each action taken on the bill, and the date of each action;
    • All versions of the fiscal note written for the bill;
    • All of the committee reports on the bill, including the vote tallies for each report; and
    • The third reading vote tallies for the bill. When you click on the third reading vote link, it takes you to the House or Senate Journal page for the day on which the House or Senate voted on the bill on third reading. You can use “Control F” on your keyboard to search for a bill number or scroll through the journal pages until you find the bill you are researching.

    • To find a summary of a committee hearing on a bill, click on “Committees” at the top of the page. Next, click on “Summaries by Bill,” then select your bill, and you will see the bill summaries for each committee of reference that heard the bill. Click on the arrow next to the committee name to get to the committee’s documents. Click on “Bill Summary,” and you will see a short summary of the bill discussion, any testimony provided on the bill, any amendments offered, the vote tally on each amendment, and the final vote tally on the bill.

    Each bill summary also shows the date of the committee hearing and the times at which the bill sponsor spoke, witnesses testified, and the committee took action on the bill. This is important information if you want to listen to the testimony or debate. The state has recordings of committee hearings going back to 1973. The General Assembly website has digital audio recordings of committee hearings from 2011 to the present available on its “Watch & Listen” page. To listen to an audio recording of a committee hearing held before 2011, you must contact state archives.

    You may also be able to watch or listen to the floor debate on a bill. Use the bill history to identify the date on which a bill was considered on second or third reading. Then, on the General Assembly homepage, click “Watch & Listen” in the top right corner of the page. Then click on the “Go To Colorado Channel” home page link, choose “House” or “Senate” under the “View Past Sessions” option, then scroll down to the year tabs or scroll down to the bottom of the page and click on the “View More” option. Click on the year and session date you want. To the right of the date there are links to that legislative date’s calendar and journal entry. Video and audio recordings of floor sessions go back to the 2008 session. To listen to floor sessions prior to 2008, you must contact state archives. You will need to be able to provide their staff with a bill number or desired dates of recordings. In addition, there may be a fee for record requests prepared by state archives staff.

    Source Notes

    If you want to know when a statute was originally enacted and how it has been changed since then, you must check the statute’s source note.

    Every section of the Colorado Revised Statutes has a source note immediately following its text that indicates the year the section was added, any year in which it was changed, which provision of the section was changed, where in the Session Laws to find the bill that made the change, and the effective date of the change. For more of the specifics on interpreting source notes, see page vi at the beginning of each printed volume of the Colorado Revised Statutes or check out this memo on the OLLS home page. There’s also a very handy chart for decoding source notes.

    If the source note tells you that your section has been amended, use the reference to the Session Laws to look up the bill that amended the section. For example, if the source note says “L. 2019: (6.5) amended, (HB19-1014) ch. 11, p. 42, §1, effective January 20, 2020,” open the 2019 Session Laws of the State of Colorado to page 42 and you’ll find the bill that amended the section. Online, go to the “LAWS” tab and choose “Session Laws”. On the new page choose the “2019 Regular Session” view and click on the PDF link to the right of the appropriate bill or chapter number. Source notes have included the number of the bill adding, amending, or repealing a statute since 2009. For source note information prior to 2009, you’ll need to use the listed chapter or page number to find the bill or statute in the Session Laws. In the online Session Laws from 2016 to present, clicking on the “Bill Topic” listing on a bill will link you back to the bill’s information page, which includes the different versions of the bill and its history of passage.

    For Session Laws from 1993 to 2015, click on the “Session Laws Prior to 2016” link. At the bottom of the list of Session Laws, there is a link to the University of Colorado’s William A. Wise Law Library, which provides digital access to the 1861 to 1992 Session Laws.

    See also “Do It Right – Researching Legislative History: What to Look For and Where to Find It”, posted March 22, 2012.

  • History in the Making: A Temporary Adjournment and Interrogatories

    By Julie Pelegrin

    Since we last posted, everything has come to a screeching halt – sort of. Last Saturday, the General Assembly took the extremely rare step of adjourning for two weeks in the middle of the regular legislative session. The existence of a declared epidemic disaster emergency and the need to implement drastic measures to mitigate the spread of COVID-19 led the General Assembly to make this serious move.

    So why is this step so rare? The Colorado constitution prohibits both the House and the Senate from adjourning for more than three days, unless they both agree. On Saturday, both houses passed House Joint Resolution 20-1007, which temporarily adjourned both houses until March 30, 2020.

    This type of temporary adjournment wasn’t always such a rare occurrence. There was a time when it was fairly common for the General Assembly to adjourn for more than three days to a date certain (as opposed to adjourning sine die, which ends the session) during a regular legislative session. These temporary adjournments would occur for a variety of reasons, generally to manage the legislative session and provide time to develop policy or return to consider vetoes.

    So what changed? In 1988, the General Assembly referred Senate Concurrent Resolution No. 1 to the ballot to amend section 7 of article V of the state constitution. At that time, this section of the state constitution limited regular legislative sessions convened in even-numbered years to 140 calendar days; there was no limit on the length of sessions during odd-numbered years. The amendment changed the language to limit all regular legislative sessions to 120 calendar days.

    And that’s one of the reasons why this temporary adjournment is so serious: How long may the regular legislative session continue after the General Assembly reconvenes? Section 7 of article V of the Colorado constitution limits the regular legislative session to 120 calendar days. But exactly what does that mean?

    Only the Colorado Supreme Court can provide a definitive answer to that question. Fortunately, there’s a constitutional process for asking.

    Section 3 of article IV of the Colorado constitution describes the Supreme Court’s authority and specifically directs the Court to give “its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives …” While the language sounds like the Court must answer these questions — they’re officially referred to as “interrogatories” — whenever posed, the Court actually has great discretion in deciding whether to answer. The Court decides whether a question is really important and whether the occasion is sufficiently solemn.

    Since Colorado became a state in 1876, the General Assembly has sent interrogatories to the Supreme Court 88 times. The Court agreed to answer all of the questions posed 58 times, agreed to answer some of the questions eight times, and refused to answer 15 times. The governor has sent interrogatories to the Supreme Court 47 times. Nineteen times, the questions were related to legislation that was either pending in the legislature or sitting on the governor’s desk awaiting his signature. The other 28 times, the governor was asking questions that were not directly related to legislation. Most of the time – 33 out of the 47 – the Supreme Court agreed to answer the interrogatories.

    In what appears to be the first interrogatory submitted in Colorado, the General Assembly asked about the constitutionality of certain provisions of the state constitution concerning water. The Supreme Court refused to answer because the interrogatory did not relate to pending legislation. Also, the Court did not find the situation grave or urgent enough to warrant giving an answer. Most recently, the Court has agreed to answer questions about the nature of certain federal funds and the authority to appropriate them, and whether voter approval is required to approve a certain type of funding mechanism for transportation. In both situations, the questions were related to pending legislation.

    Generally, in deciding whether to accept interrogatories, the Supreme Court has said the interrogatory must “be connected with pending legislation, and relate either to the constitutionality thereof or to matters connected therewith of purely public right.“

    So, returning to the question at hand concerning the meaning of 120 “calendar days,” on Saturday, the General Assembly passed House Joint Resolution 20-1006 asking the Supreme Court to answer the following question:

    Does the provision of section 7 of article V of the state constitution that limits the length of the regular legislative session to “one hundred twenty calendar days” require that those days be counted consecutively and continuously beginning with the first day on which the regular legislative session convenes or may the General Assembly for purposes of operating during a declared disaster emergency interpret the limitation as applying only to calendar days on which the Senate or the House of Representatives, or both, convene in regular legislative session?

    On Monday, March 16, the Supreme Court accepted the interrogatories. The General Assembly, the Governor, the Attorney General, and any other interested persons are invited to submit briefs by Tuesday, March 24. Sometime after that, the Supreme Court will issue its answer. Stay tuned!

  • Legislative Ethics: When to Just Say No to Gifts

    by Jennifer Gilroy

    As mentioned in previous articles, Article XXIX of the Colorado Constitution (commonly referred to as “Amendment 41”) generally prohibits legislators from:

    1. Asking for or accepting gifts worth more than $65 from any one source in a given year; and
    2. Accepting any amount of money, forbearance, or forgiveness of indebtedness.

    However, the legislator can accept the gift if the legislator provides lawful consideration that is at least equal to the value of the gift, money, forbearance, or forgiveness of indebtedness. But even if the legislator does not provide lawful consideration for the gift, Amendment 41 offers several exceptions to these two gift bans. The legislator may accept a gift that is:

    • A campaign contribution;
    • Something trivial, of less value than $65;
    • An unsolicited token or award of appreciation;
    • Unsolicited information material, publications, or subscriptions related to the legislator’s official duties;
    • Admission to and the cost of food or beverages at a reception or meeting at which the legislator is scheduled to speak as part of a program;
    • Reasonable expenses paid by a nonprofit organization or other state or local government for attendance at a convention, fact-finding mission or trip, so long as the person is scheduled to deliver a speech, make a presentation, participate on a panel, or represent the state or local government, but the non-profit organization must receive less than five percent of its funding from for-profit organizations or entities;
    • Given by an individual who is a relative or personal friend of the legislator on a special occasion; or
    • Part of the legislator’s regular pay in the normal course of the legislator’s employment.

    In addition to prohibiting legislators from accepting certain gifts and things of value, Amendment 41 also prohibits professional lobbyists from giving legislators any gift or thing of value of any kind or nature, regardless of the gift’s value. The only exceptions to this prohibition are for campaign contributions and gifts a professional lobbyist makes to members of the  lobbyist’s immediate family. Based on this gift ban, members of the General Assembly are well advised not to accept gifts in any amount and of any value from professional lobbyists. That’s right, not even a cup of coffee.

    Want to test what you’ve learned about gifts you may and may not accept? Here are some hypothetical situations for your consideration:

    Situation #1.  You are a brand new legislator from Larimer County and you are delighted to receive a letter from the President of Colorado State University offering you two tickets to the highly anticipated CU-CSU football game. You know that the tickets have a value of approximately $150 per ticket. You also know that they are having a difficult time selling enough tickets to fill the stadium for this game.

    May you accept the complimentary football tickets?

    1. YES, because the big game is going to be at Empower Field at Mile High and the school sponsors have not sold nearly enough tickets to fill the stadium. You would be providing a huge benefit to CSU and CU, and really the state of Colorado, by spending your valuable time at this nationally televised football game. In fact, you consider your contribution of time to be worth at least as much, if not more than, the value of the tickets you are receiving.
    2. NO, because the value of the tickets exceeds $65 and none of the exceptions to the gift ban applies, accepting the tickets would violate the Amendment 41 gift ban.
    3. YES, because the following statement is printed on the bottom of the letter, “Because these tickets are provided by the University, which is a public entity and is not considered a ‘person’ under Colorado Amendment 41, this courtesy is not governed by Amendment 41.”
    4. YES, because one of the exceptions to the Amendment 41 gift ban allows a state government to pay the reasonable expenses for you to attend a convention, fact-finding mission or trip, or other meeting. A CU-CSU football game could be considered a “meeting” under this exception.

    The correct answer is 2. Amendment 41 prohibits you from accepting a gift valued at more than $65. Because the value of these tickets would exceed $65, because CSU is a “person” from which you may not accept most gifts, and because none of the exceptions to the Amendment 41 gift ban applies to this situation, you should not accept the tickets.

     Situation #2. You’ve been invited to attend a legislative reception hosted by the Colorado Florists Association. This is a popular annual event and, although you first thought you were invited because of the farmers’ market bill you sponsored last session, you’ve since learned that every member was invited and many of your colleagues plan to attend. The invitation indicates that there will be hot hors d’oeuvres and two drink coupons for each attendee. The invitation also states that the total value to each attendee does not exceed $65. You have also learned that the reception is being paid for by the association’s contract lobbyist.

    May you attend the Colorado Florists Association’s reception?

    1. YES, because the value of the reception is less than $65 and you have not and will not accept any other gifts from this lobbyist for the rest of the year.
    2. YES, because you do not intend to eat or drink anything at the event.
    3. YES, because you have been asked to speak at the event about the farmers’ market bill you sponsored last session.
    4. NO, the constitutional prohibition against gifts in any amount from a professional lobbyist is absolute and clear.

    The correct answer is 4. Amendment 41 prohibits a professional lobbyist from giving a member of the General Assembly (among other public officials and employees) any gift or thing of value of any kind, regardless of value. In IEC PS 09-01 concerning gifts from lobbyists, the IEC recognized this gift ban as an absolute prohibition. This prohibition expressly includes food and beverages. The only exceptions to this prohibition are for political campaign contributions and gifts to members of the professional lobbyist’s immediate family. Because neither of those exceptions applies in this case, it is inadvisable for you to accept this gift.

  • Sunset Review: When the Regulatory Day is Done

    by Julie Pelegrin

    Consistently throughout the history of the world, two events have never failed to occur on a daily basis: sunrise and sunset. Having covered regulatory “sunrise” last week, it’s only fitting that we now discuss regulatory “sunset.” Before the General Assembly begins regulating a profession or occupation, it requires a study to ensure that the regulation will be in the public interest. Similarly, once regulatory bodies and functions are created, the General Assembly requires periodic review to ensure that they continue to serve the public interest.

    The law requires all advisory boards and the regulatory divisions, boards, and agencies, and some functions, in the Department of Regulatory Agencies (DORA) to repeal based on a schedule specified in the statute. In the common vernacular, this schedule of repeals is called a “sunset” provision, i.e., the sun sets on the agency, board, or function, and it ceases operating. According to DORA’s website, the term “sunset” in reference to this process was actually coined in Colorado in the 1970s. The Colorado Office of Policy, Research and Regulator Reform (COPRRR) within DORA handles the sunset process.

    How does it work?

    When a new advisory board is created in any department or a new division, board, agency, or function is created within DORA, the new entity or function is scheduled for repeal within 10 years. Approximately two years before that repeal date, COPRRR begins the review process, which includes research, writing, legislation, and rule-making.

    Generally, the review process focuses on two issues: 1) Is there a public need for the entity or function; and 2) Is the regulation that the entity or function imposes the least restrictive, consistent with the public interest?

    COPRRR must consider several factors in answering these questions. In addition to specifically looking at public safety and interest protections and the necessary level of regulation, the factors include:

    • The entity’s efficiency;
    • The degree to which the entity actually works with and represents the interests of the public and not just the regulated occupation;
    • How the regulations impact the economy and competition within the regulated occupation;
    • Whether the requirements for entering the occupation encourage affirmative action;
    • Whether the regulation takes into account prior criminal history and whether it uses this information to protect the public or to protect the occupation; and
    • Whether administrative and statutory changes are necessary to improve the entity’s operations and better serve the public interest.

    In completing the research, COPRRR will collect data; review the pertinent literature, statutes, and rules; and solicit information from and meet one-on-one or in small groups with a wide variety of public and private interested persons. The COPRRR website includes an online comment form that anyone can use to provide input.

    When the research is completed, the reviewer writes a sunset report, which must be submitted to the Office of Legislative Legal Services by October 15 of the year before the entity or function is scheduled to repeal. The report generally consists of background information and recommendations for statutory and regulatory changes. The report also recommends whether the entity or function should continue or be allowed to repeal. A division, board, agency or function may be continued for up to 15 years before the next review; an advisory board may be continued indefinitely. If the COPRRR recommends significant statutory or administrative changes, it is more likely to recommend a shorter continuation time to review whether the changes are effective.

    The OLLS drafts a bill to implement the statutory recommendations made in the sunset report. The Speaker of the House, in even-numbered years, or the President of the Senate, in odd-numbered years, selects a committee of reference to review the sunset report and the bill draft.

    The committee of reference holds a public hearing on the drafted—but not yet introduced—bill and the COPRRR’s report. These hearings usually occur in January soon after the legislative session starts, but may occur before session starts. At the hearing, personnel from the COPRRR present, and the committee typically takes public testimony on, the report and the bill draft. The committee may adopt amendments to the bill draft before deciding whether to approve the bill draft for introduction. The committee must base its decisions concerning the bill on the same factors that the COPRRR considered in making its recommendations.

    If the committee approves the bill draft for introduction, the committee chair assigns at least one legislator—who may or may not be a member of the committee—to sponsor the bill. If it’s a House committee of reference that approves introduction of the bill, the bill starts in the House, and the Senate President assigns one or two Senators to be Senate sponsors. If a Senate committee of reference approves introduction of the bill, the bill starts in the Senate, and the Speaker of the House assigns one or two Representatives to be House sponsors. Sunset bills do not count against a legislator’s five-bill limit, but a legislator cannot be the prime sponsor of more than two sunset bills regarding divisions, boards, agencies or functions in a single legislative session.

    When a sunset bill is introduced, it must be assigned to the same committee of reference that held the initial sunset hearing on the bill draft. After introduction, sunset bills are like any other bill; they may be amended and they must pass both houses and be approved by the Governor before they can become law. While the bill as drafted must reflect the recommendations in the sunset report, the General Assembly may amend the bill in any manner that fits within the single subject stated in the bill title.

    If the committee does not approve introduction of the bill or the sunset bill does not pass, then the repeal takes effect in July or September of the year after the COPRRR issues its report. An advisory board ceases operations immediately upon the repeal date. But the repeal of a division, board, agency, or function actually starts a one-year wind-up period. The entity or function continues to operate just to finish its business until the following July or September when the entity ceases to exist or the function ceases to operate. A license issued or renewed during this wind-up year, and any other outstanding licenses, expire when the entity or function actually ceases.

    Think of the wind-up year as the twilight. At the end of the year, the regulatory sun finally drops below the horizon, and everything goes dark. After that, only the General Assembly can make the sun rise again on that piece of government.

  • Good Morning Sunrise!

    by Jery Payne

    You’re sitting in your office with your cup of joe or grande ristretto caffe latte—depending on your style—reading the newspaper when in walks a lobbyist, who says “I want to talk to you about bank robbing.” As you take a drink, she continues, “The bank­-robbers association believe their occupation needs to be licensed.”

    After the coffee is wiped up, you manage to ask her, “They have an association?”

    “Yes,” she replies, “they play an important part in the economy, and licensing is very important to avoid poor quality, which can be dangerous. The banks support licensing.”

    “The banks?”

    “Yes,” she adds, “The banks suffer the most from poor­-quality testing of bank security.”

    “Ah, I thought you meant actual thieves.”

    “No, silly. Legal bank robbers: the people who try to circumvent physical and electronic security measures.”

    After a long talk, you agree that licensing legal bank robbers may be the best way to help Colorado banks. Before you put in a bill request, however, you may want to find out if the proponents have obtained a sunrise report from the Department of Regulatory Agencies. It might save you some trouble.

    Section 24‑34‑104.1 sets the basic requirements necessary to propose “the regulation of any unregulated professional or occupational group.” This section requires such a proposal to be submitted by December 1 to the Department of Regulatory Agencies for analysis. The proposal must be signed either by ten members of the occupation or by ten other people. The proposal must contain the following:

    • A description of the group proposed for regulation, including a list of organizations representing practitioners in Colorado, and an estimate of the number of practitioners;
    • A description of the problem and why regulation is necessary;
    • The reasons why the specific form of regulation is proposed;
    • The public benefit of the regulation;
    • The cost of the regulation; and
    • If the proposal seeks to disqualify a person based on criminal history, a description of the disqualifications and how the disqualifications serve public safety or commercial or consumer interests.

    If the proposal is in order, the department should analyze the proposed regulation and send the analysis to the proponents and the General Assembly by October 15 of the following year. If the department finds that the lack of regulation “poses an imminent threat to public health, safety, or welfare,” the department will promptly notify the proponents and the Legislative Council, which will hold a hearing on the matter. If the Legislative Council at the hearing agrees there is an imminent threat, the department may forego the analysis, and a legislator may introduce legislation without having the report.

    If the matter is not so dire, the department will evaluate and analyze the proposal and make a recommendation in a report based on whether:

    • Unregulated practice concretely harms or risks public health, safety, or welfare;
    • Regulating occupational competence is needed and beneficial;
    • The public can be protected in a more cost‑effective manner; and
    • Disqualifications based on criminal history serve public safety or commercial or consumer interests.

    Once you have the report, you may introduce the bill within two regular legislative sessions.

    The department may decline to conduct the analysis if it already did the analysis within the last three years and no new information has been submitted that would change the department’s mind.

    If the department doesn’t do a new analysis, it will reissue the previous report. This means you have a report and may introduce a bill within the next two regular legislative session.

    Now I bet I know what a lot of you are thinking: “What exactly does ‘regulating’ mean?” The Office of Legislative Legal Services thinks it means legislation concerning a job that hasn’t previously been the specific subject of legislation. The Governor’s Office, however, has said that it means only licensing, registration, and certification. The Governor’s Office reasoned that most occupations are subject to some laws; therefore, the sunrise statute cannot apply to all laws specific to an occupation. Yet this reading is hard to square with the actual language of the statutory section, which requires proponents of the regulation to state “the reasons why certification, registration, licensure, or other type of regulation is being proposed …” So “regulation” appears to be more than certification, registration, or licensure.

    Another problem with the interpretation of the Governor’s Office is that it conflates the regulation of an occupation with general‑purpose laws. For example, the law forbids bankers to steal, but the law doesn’t actually mention bankers. It applies to everybody regardless of whether they are a banker, so it is a general‑purpose law that incidentally a banker must obey when doing business. But a law that specifically requires bankers to keep a log of transactions is a law regulating bankers. A law that sets a standard or requirement for someone because of the person’s occupation is the regulation of an occupation. The mere fact that an occupation is subject to a general‑purpose law does not mean it is a regulated occupation; but a new law that would create a requirement specific to the occupation should be subject to the sunrise process.

    Nevertheless, the governor may veto the bill because it does not follow his office’s interpretation. Ignore the reading of the Governor’s Office at your own risk.

    So before using a bill request to help bankers get better security testing, it makes sense to ask if the proponents have followed the sunrise process.