An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.
The Colorado LegiSource is taking a break for the next several weeks. We expect to resume weekly postings on July 30. In the meantime, if you have questions you would like answered or issues you would like to see discussed on the Colorado LegiSource, please contact us using our feedback form.
By Julie Pelegrin
Finally, the longest, shortest, strangest legislative session in recent memory is over. Monday, June 15, 2020 – that’s right, June 15 – the 72nd General Assembly wrapped up their second regular legislative session. The total number of bills introduced was comparable to past sessions: 427 House bills and 224 Senate bills for a total of 651. What was different about this session was that 88 of those bills were introduced in the last 16 days of the session.
There were actually several things that were different about this session.
On the 67th legislative day, March 14, the General Assembly temporarily adjourned until March 30 due to the public safety concerns raised by the COVID-19 pandemic. When they attempted to return on March 30, a quorum of legislators was not present in either house, so the temporary adjournment continued until May 26. This was the first time in 30 years that the regular legislative session did not end within 120 days after it started.
When the General Assembly temporarily adjourned on March 14, they invoked for the first time Joint Rule 44 (g) of the Joint Rules of the Senate and House of Representatives, which says that, during a declared statewide health emergency, the limit of 120 calendar days that the constitution places on the length of a regular legislative session applies only to the days on which at least one of the houses actually convenes. (Otherwise, every calendar day beginning with the first day of the legislative session counts toward the limit). Just to be sure, the General Assembly submitted an interrogatory to the Colorado Supreme Court, and the Court confirmed that counting only working calendar days complies with article V, section 7 of the Colorado constitution.
So Tuesday, May 26, when both houses reconvened, was the 69th legislative day. And the day on which the General Assembly adjourned sine 
die – June 15 – was actually only the 84th legislative day. Thus, in another first in 30 years, the General Assembly ended the legislative session a bit more than a month early, while also ending a bit more than a month late.
Although the session was interrupted and truncated, the General Assembly considered the usual wide range of policy issues: education, death penalty, health care, water, taxes, housing, regulation of vaping and other nicotine products – the gamut. But it seems some of the biggest issues were handled in the last 16 days after the General Assembly reconvened.
As of March 14, neither the annual budget bill nor the annual school finance bill – the only two measures that the constitution requires each year – had been introduced, although the budget bill was almost finished. Because of the unprecedented drop in the economy caused by the secondary effects of COVID-19, the Joint Budget Committee and its staff put in many, many exhausting hours rewriting the entire bill. As originally written, the budget was expected to spend approximately $800 million more in the 2020-21 fiscal year than in the 2019-20 fiscal year; as passed, the budget spends approximately $3.3 billion less. The school finance bill also had to be written to reflect the constitutionally required increase in per-pupil statewide base funding of $132 (1.9% for inflation) above the per-pupil statewide base amount for the 2019-20 fiscal year and, due to the loss in revenue, a decrease of approximately $445 million in the total amount the state will appropriate the 2020-21 fiscal year for school finance below the amount appropriated for the 2019-20 fiscal year. The school finance bill also includes a provision to potentially—but not in 2020-21—increase the amount of property tax that school districts collect to rebalance the amount of revenue contributed by school districts and by the state to fund public schools.
There were other significant tax measures passed in the last 16 days. This November, voters will consider whether to repeal the Gallagher amendment, the constitutional provision that controls the assessment rates for residential and business property, and whether to increase the taxes on nicotine products to the tune of about $83 million in the 2020-21 fiscal year, about $168 million in the 2021-22 fiscal year, and more in subsequent years. The revenue is earmarked for rural schools and school districts, preschool programs, tobacco education programs, affordable housing construction grants and loans, and eviction legal defense costs.
The General Assembly also passed House Bill 20-1420, concerning the adjustment of certain state tax expenditures in order to allocate additional revenues to the state education fund. This bill, for purposes of state income taxes, reverses some of the effects of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) that would otherwise reduce state revenue. Also, beginning in the 2021 tax year, the bill extends the earned income tax credit (EITC) to taxpayers who do not have a valid social security number but otherwise qualify for the credit and increases the amount of the EITC beginning in 2022. For the first two years, the bill is expected to result in a net increase in state revenue of up to $126 million, all of which will be transferred to the state education fund. Beginning in the 2022-23 fiscal year, the bill is expected to cause a net decrease in state revenue of up to $92 million over two years.
And lest we think the last 16 days have been all about money, the General Assembly also passed Senate Bill 20-217, enacting landmark criminal law reforms in direct response to the public’s calls for changes in law enforcement.
Clearly it was a busy 16 days. Legislators now turn their attention to the duties of the interim and the coming elections, while legislative staff shift their focus to publishing the statutes, reviewing agency rules, finalizing the state’s 2020-21 budget, preparing the 2020 Blue Book explaining the initiatives and referenda that will be on the November ballot, and planning the training program for the new legislators who will join the 73rd General Assembly in January 2021.
Mark your calendars: the first regular session of the 73rd General Assembly will convene at 10:00 a.m., January 13, 2021.
by Jennifer Gilroy
You’ve just learned that your chamber has delivered your bill to the governor’s office and now you’re biting your nails wondering whether Governor Polis will sign it. But you are admittedly a little confused about just how long he has act on it. Unlike legislative deadlines, this deadline is more of a floating deadline, completely unrelated to the legislative calendar—other than what day the General Assembly actually adjourns sine die.
The amount of time that the governor has to take action on a bill is actually described in Article IV, section 11 of the Colorado constitution which states, in pertinent part:
“…If any bill shall not be returned by the governor within ten days after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the general assembly shall by their adjournment prevent its return, in which case it shall be filed with his objections in the office of the secretary of state, within thirty days after such adjournment, or else become a law.” [Emphasis added]
In other words, if the General Assembly delivers a bill to the governor, and there are 10 or more days left in the session, then the governor only has 10 days to sign or veto the bill. If he doesn’t act within that time, the bill automatically becomes law without his signature. If the General Assembly delivers a bill to the governor when there are fewer than 10 days left in the session or after they have adjourned sine die, then the governor has 30 days after the date of adjournment sine die to act on the bill or the bill automatically becomes law without his signature.
At the time of writing this article, however, it is not certain what day the General Assembly will actually adjourn sine die. In any other year when consecutive calendar days count toward the 120-day limit, it is much easier to tell when the General Assembly is in the last 10 days of the session. However, in this unique legislative session during which a declared public health disaster emergency makes only those days when either the House or Senate convene count toward the 120-day limit, determining when that 120th day will actually occur is a lot murkier. For more information on how the General Assembly identifies “10-day bills” in a normal legislative session, check out this LegiSource article.
At this point, all indications are that the General Assembly is unlikely to meet the full 120 days they are permitted under the constitution and will, in fact, adjourn sine die early. That is because, even though it is only the 82nd day of the 120-day legislative session, the Speaker announced on Monday that we are in the final five days of the session and both the Senate and House Majority Leaders announced in their respective chambers that, starting Wednesday, we are in the final three days of session. Despite those announcements, it appears more likely they will adjourn sine die on Monday.
If the General Assembly does, in fact, adjourn sine die on Monday, June 15th, then the 10-day rule will apply to bills that were delivered to the governor on or before June 5th. For bills delivered to the governor on and after June 6th, the governor has 30 days following adjournment sine die to sign or veto those bills or they will automatically become law without his signature. And if the General Assembly adjourns sine die on June 15th, the 30th day following final adjournment will fall on July 15th. Any bills that become law without the governor’s signature will take effect at 12:01 a.m on Thursday, July 16th, unless a later date is specified in the bill.
By Julie Pelegrin
LegiSource followers may recall that, toward the end of a regular legislative session, certain exceptions in the legislative rules take effect with the goal of expediting the process. These exceptions apply based on how many legislative days remain in the legislative session.
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. Because of this, it’s not hard to predict how many days are left in a regular legislative session.
This year, however, the session has been anything but regular. Based on the provisions of Joint Rule 44 of the Joint Rules of the Senate and House of Representatives, since last March when the Governor declared a state of disaster emergency caused by a public health emergency exposing a great number of people to disease, legislative days are no longer counted as consecutive calendar days. Instead, only those days on which the House or the Senate actually convenes count toward the 120-day limit.
So, if we are only counting the days on which the House or the Senate convenes, and they could decide to take a temporary adjournment, and they could decide to adjourn sine die early, how will we know when the rule exceptions apply? How can we reliably count the days? That’s what announcements are for.
Wednesday, June 10, was the 80th legislative day of the session. On that date, there were as many as 40 days remaining on which the General Assembly could convene before they would be required to adjourn sine die. However, the Majority Leaders in both the Senate and the House 
have announced that, as of Wednesday, June 10, the legislature is in the final three days of the legislative session. This does not necessarily mean the General Assembly will adjourn sine die on Friday, June 12, 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:
Last 2 Days of Session:
And there are a couple of additional rule changes that have apparently been in effect for some time:
Last 5 Days of Session:
Last two weeks:
We still do not know exactly the date on which the General Assembly will finally adjourn this year’s legislative session, we can reliably assume it’s getting close….
The General Assembly, as an institution, is prohibited from making any contributions to a campaign involving the nomination, retention, or election of a person to a public office and from expending public money or making contributions to urge voters to vote for or against a ballot measure. See section 1-45-117 (1), C.R.S. This prohibition applies to the staff and resources of the General Assembly. A legislator may expend up to $50 of public money “in the form of letters, telephone calls, or other activities incidental to expressing his or her opinion” on a ballot measure, referred measure, or measure to recall a public officer. The expenditure of public money in this context generally means the use of legislative staff; equipment such as phones, computers, and copiers; and materials such as paper, office supplies, and postage. A legislator, as an elected official, can express a personal opinion on and may expend personal funds, make contributions, or use personal time to urge electors to vote in favor of or against a ballot measure. Additionally, the employee policies for the Colorado House of Representatives and the Colorado Senate establish limitations and prohibitions on the use of legislative resources in election campaigns.
It is improper and unethical to use state equipment and state services such as offices, telephones, internet access accounts, copiers, fax machines, computers, postage, supplies, and staff time for campaign or personal purposes. The use of state equipment for these purposes holds potential civil and criminal liability. See Colo. Const. art. XXVIII, § 9 (2)(a), Colo. Const. art. XXVIII, § 10, and section 1-45-117 (4), C.R.S. A member of the General Assembly, however, is not prohibited from using state facilities or equipment to communicate or correspond with the member’s constituents, family members, or business associates. See section 24-18-106 (2), C.R.S. Furthermore, the official state seal, measuring two and one-half inches in diameter, may only be used by the Secretary of State in an official capacity. However, the Secretary of State has issued rules regarding the use of copies of the state seal by other state entities.
Seems easy enough. Here are some hypothetical situations for your consideration:
Situation #1. It’s mid-session and you realize that several of the most controversial bills of the session will be coming before the body for consideration in the next few weeks. You are interested in holding a town hall meeting in your district to discuss these important issues with your constituents. Your home community will be celebrating its annual Chipmunk Days in two weeks, and your staff has encouraged you to take advantage of that time to hold a town hall meeting at which you could also do some campaign fundraising. Your legislative aides are ready to prepare automatic phone calls to your constituents regarding the upcoming town hall meeting in your district and, using your state-issued laptop, to reach out to possible campaign contributors regarding the event.
May you use legislative staff and state equipment during regular business hours at the state capitol to generate automated telephone calls to your constituents regarding a town hall meeting to discuss legislative issues and conduct some campaign fundraising?
The correct answer is 2. The use of legislative staff and state resources, including use of your capitol phone and state-issued laptop, during regular business hours to arrange a town hall meeting is permissible if the meeting and phone calls are exclusively related to legislative business. Because this meeting will also be used for campaign purposes, the statutory prohibitions on the use of state equipment or services for campaign or political purposes prevent you from using those resources for such a purpose. Furthermore, Senate and House policies prohibit legislative staff from engaging in election campaign activity relating to your election campaign.
Note: With respect to answer “3”, although section 1-45-117 (1)(a)(II), C.R.S., essentially permits a member or employee of the General Assembly to expend $50 or less of public money expressing his or her opinion, even such a de minimus use of public money to promote a public purpose may trigger a complaint. It is recommended that members and employees stay comfortably clear of the lines separating official duties from political activity in connection with town meetings and other legislative functions.
Situation #2. A very good friend of yours has decided to run for the office of Sheriff in your district. Although he has not asked you, he has hinted that he would really appreciate your support. You would like to send a letter of endorsement to your constituents who reside in that county using your official state legislative letterhead with the state seal on it, but you’re not sure if that might violate the prohibitions on the use of state resources or the use of the state seal.
May you use your official letterhead with the state seal to write a letter of endorsement for a candidate for the office of county Sheriff?
The correct answer is 3. While you may send a letter on your official legislative letterhead with the state seal on it if the contents of the letter are related to a legislative or state function, endorsing a friend for public office is not related to your legislative duties or a state function and therefore would not be appropriate.
Situation #3. As a member of the General Assembly you have been issued a state-owned iPad to assist you with your legislative duties. The features on it allow you to easily access the House, Senate, and committee calendars, follow the bills that specifically interest you, and access your emails. It is so useful that you have found yourself using the iPad almost exclusively and allowing your legislative aide to use your state-issued laptop. Because of its convenience, you have recently been using your iPad to send emails to your family on the western slope both during the day and in the evenings when you take your iPad to your apartment to do legislative work.
May you use the state-owned iPad issued to you as a member of the General Assembly to communicate with your family?
The correct answer is 1. Section 24-18-106 (2), C.R.S., expressly permits you to communicate with your constituents, family members, or business associates using state equipment for purposes not related to an election campaign.
by Jery Payne
If you haven’t read the May 14th post , you will probably need to read it to make sense of this week’s post. But for a quick reminder: In the late 19th century, the Colorado Supreme Court struck down legislation that provided monetary relief for farmers because it violated section 34 of article V of the state constitution. This section prevents appropriations to persons that are not under the state’s control. In the late 20th century, the Colorado Supreme Court upheld legislation that provided monetary incentives for airlines to locate their headquarters in Colorado, even though these airlines were not under the state’s control. What changed? The Colorado Supreme Court developed the public-purpose doctrine, which we will explore this week.
In Bedford v. White, the court first articulated, in 1940, the public-purpose doctrine. The General Assembly had provided pensions for retired public servants, including judges. State Auditor Homer Bedford was concerned because pensions are appropriations for people who have retired from the state, so these people are no longer under the control of the state. Pensions appear to fall squarely within the holding of the farmer-relief case. When the two retired justices Harrison White and John Adams asked for their pensions, the state auditor refused to issue vouchers for the pension. The justices sued the state auditor. This case presented the issue of section 34’s prohibition squarely before the court.
The opinion wrestles with the fact that invalidating the pensions would really hurt the state’s ability to attract high-quality judges and employees: “[P]ensions, generally, are not considered donations or gratuities but inducements to continued service.” After all, a typical justice could probably make more income in private practice. And given that firefighters and peace officers can die in the line of duty, the state would have a harder time with recruitment unless it promised to take care of their families. Because pensions are not charity, the court didn’t believe that section 34 was really intended to forbid pensions.
The court also realized just how far reaching the holding would be: “In recent years legislation providing for pensions and retirement compensation to large numbers of persons after their retirement from service as public officers, servants, employees, and agents of the state has been enacted by the General Assembly.” And then, realizing that the opinion was going far afield from the facts presented, they made excuses for bringing it up:
We are aware of the fact that the rights of none of these classes are directly involved or may be determined in this suit. We mention them merely as instances of the possible far reaching effect of the construction of these two sections of the Constitution contended for by [the state auditor] in this case.
Yet the holding in the farmer-relief case appears to apply to pensions, which benevolently pay persons not under absolute state control. (Is the state’s control over anybody absolute?) In all this wrestling with the potential reach of section 34, the court realized that the decision in the farmer-relief case went too far.
Therefore, the court narrowed section 34 from its broad interpretation in the famer-relief case. The court held that section 34 does not prohibit appropriations that serve a public good or purpose:
If a pension has no reasonable relation to the public good it is of course a mere private grant and void. But if it serves a present public purpose it is not a mere private grant even though as an incident to the accomplishment of the public purpose the recipients thereof may be personally benefitted.
So the court upheld the pensions because they serve the public good.
During the 20th century, the Colorado Supreme Court developed the public purpose doctrine because a broad, substantive reading of section 34 is a monster that could swallow any act. Each act is passed, at least in the mind of the act’s sponsor, for benevolent purposes. (Yes, a legislator could sponsor an act for malevolent purposes, say for revenge, but how likely is that act to pass unless the sponsor can at least articulate a benevolent purpose?) The law against murder serves the benevolent purpose of protecting people. And an appropriation is required to enforce the law against murder. Therefore, the law against murder requires an appropriation that benefits the small group of people who would otherwise die and who are not controlled by the state.
Faced with this dilemma, the court developed a way to harmonize section 34 with the General Assembly’s ability to pass any appropriation: the public purpose doctrine. If the narrow reading is too narrow and the broad reading is too broad, the public purpose doctrine is the Goldilocks position; it’s a compromise. The idea is that an act is legitimate if it is for the public good rather than for private gain. The only type of act that would run afoul of this prohibition would appear to be an act that a court finds has a significant private gain with little or no public benefit. An act that has the appearance of corruption would probably fit this description, but appropriations made for a legitimate public purpose should not run afoul of section 34.
By Jennifer Gilroy
While counting only working calendar days toward the 120-day limit of the legislative session may provide the General Assembly with some relief toward achieving their “mission-critical responsibilities” after sitting out the worst (hopefully) of the pandemic, it also comes with some unintended (and not inconsequential) repercussions. By counting only the working calendar days, the final adjournment of the 2020 regular legislative session is necessarily delayed, which, in turn, delays the 90 days following adjournment sine die, the time period the state constitution allows for a voter to file a petition to refer an enacted bill to the ballot. That delay then compresses the period of time in which the Secretary of State and the Legislative Council Staff agency must accomplish certain mandatory procedures before the referred bill can be placed on the November 3rd ballot. Too much? Think about it like dominos.
The First Domino: A Delayed Adjournment Sine Die
We had been anticipating that the General Assembly would adjourn its 2020 regular legislative session on May 6th (the scheduled 120th day). But life as we anticipated it was unexpectedly up-ended by the pandemic, and, as a result, both chambers have been temporarily adjourned for several weeks now. It’s the current belief that the General Assembly will reconvene on May 26th and will have as many as 52 working calendar days remaining to complete its work. If the General Assembly uses all of those days and does not work on weekends or holidays, then adjournment sine die could be as late as August 6th, some 13 weeks later than expected. The first domino just tipped.
The Second Domino: The 90-day Petition Period is Pushed Back
Many of the bills that have already been enacted (73 bills) or that are still pending in the legislative process (226 bills) have a clause stating that the effectiveness of the act is subject to the filing of a referendum petition. That clause is based on a provision in the state constitution that allows a voter to file a referendum petition with the Secretary of State to place a bill that the legislature enacted (and that did not state that it was necessary for the immediate preservation of the public peace, health, or safety) on the November ballot. The constitutional provision gives the voter 90 days following the legislature’s adjournment sine die to secure the required number of signatures and submit the petition and signatures to the Secretary of State. For more information on the peoples’ power of referendum click here.
If the legislative session had not been unexpectedly interrupted by the virus, the 90th day after May 6th would have fallen on August 5th. By comparison, if the legislature reconvenes on May 26th, adjournment sine die may not occur until August 6th, pushing back the 90th day to November 4th, one day after the general election! The first domino just toppled the second domino.
The Third Domino: Constitutional & Statutory Procedural Requirements
But even if the General Assembly were to adjourn sine die before August 6th, maybe as early as June 12th, it would still prove difficult, if not impossible, to get a measure on the November 2020 ballot due to the several constitutional and statutory procedural steps that must be taken after the voter files a petition and accompanying signatures with the Secretary of State’s office but before the election. Once the petitioner has gathered the necessary signatures (or more) to place the bill on the ballot, the Secretary of State must verify the signatures. That takes time—as much as a month according to that office. But that’s not all, the law also requires the Secretary of State to certify the content of the ballot to every county clerk and recorder in the state at least 57 days before the election, which is September 4th this year. So even optimistically, if the General Assembly were to adjourn sine die on June 12th, the 90th day would be September 10th, nearly a week after the secretary of state is required by law to certify the contents of the ballot to the local governments.
And wait, there’s more! The state constitution requires the Legislative Council Staff to prepare and distribute the blue book, an informational booklet for voters, which includes the text and a fair and impartial analysis of the measures that will be on the ballot, at least 30 days before the election. This year that means October 2nd. The constitution ensures the public’s opportunity to submit written comments for consideration by the legislative research staff in preparing the analysis, so time needs to be built into the blue book process to afford members of the public that opportunity to comment. And once that process is complete, the blue book must be approved by the Legislative Council and then finalized. The Legislative Council meeting typically occurs the first week of September. But you’ll recall in our optimistic scenario, the 90-day petition period would not even end until September 10th. The domino chain reaction now appears unavoidable.
The Fourth Domino: Bills with Petition Clauses and Specified Effective Dates
The domino effect may be compounded if a bill with a petition clause also specifies an effective date that precedes the earliest date that the bill can take effect. For example, several sunset bills include a petition clause but also specify an effective date of September 1st to avoid a program automatically repealing (“sunsetting”) on that date. If the General Assembly had adjourned on May 6th as originally expected, the September 1st effective date would not have posed a problem. However, if the General Assembly adjourns sine die even as early as June 12th, pushing the 90th day back to September 10th, the earliest a bill with a petition clause would become effective would be at 12:01 a.m. on September 11th, long after the September 1st deadline when several programs will have already gone into a wind-up period.
To stop the inevitable results of the domino effect, bill drafters have examined the nearly 300 bills with petition clauses and are working directly with the sponsors of those bills to prepare the necessary amendments to avoid total calamity—or at least avoid the likely calamitous effects of the delayed final adjournment of the 2020 regular legislative session on those bills.
By Jery Payne
Toward the end of the 19th century, some farmers moved to an area in the eastern plains of Colorado then known as the “the rain belt region.” The name was a bit optimistic. Due to a drought, the farmers lost their crops. The General Assembly passed a relief act, which provided for the purchase of seeds and grain for the farmers. Attorney General Byron Rogers was concerned that the act violated section 34 of article V of the Constitution of Colorado.
So the attorney general asked Governor Albert McIntire to submit interrogatories to the Colorado Supreme Court. In a case titled In re Relief Bills, the court held that:
We think it is clear that the state cannot, in its sovereign capacity, extend aid for charitable, industrial, educational or benevolent purposes to any person, corporation or community, unless such person, corporation or community is under the absolute control of the state.
Toward the end of the 20th century, Governor Roy Romer called a special session to pass legislation creating incentives for airlines to place operations in Colorado—specifically, United Airlines was considering placing a maintenance facility in Colorado. The General Assembly passed an incentive act, which provided for building airport facilities to accommodate United’s planned expansion. The governor was concerned that the bill might violate section 34.
So the governor submitted interrogatories to the Colorado Supreme Court. In a case titled In re Interrogatory Propounded by Governor Roy Romer on House Bill 91S-1005, the court held: “We conclude that, on its face, [the act] does not violate article V, section 34.”
What a difference a century makes! Let’s look at the language of section 34:
Section 34. Appropriations to private institutions forbidden. No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.
Both acts made appropriations. Both acts apply to the forbidden categories: charitable, industrial, educational or benevolent. The first act was for charitable and benevolent purposes; the second act was for industrial and benevolent purposes. Both acts spent the money for a covered entity: a person, corporation, or community. And finally, neither farmers nor airlines are under the absolute control of the state. So far, the two cases both fall under section 34.
I’ll bet I know what some of you are thinking: Neither of these cases falls under section 34 because in both cases, the appropriation was made for, not to, the farmers and the airline. The words to and for don’t mean the same thing. Therefore, an appropriation must be made to state agencies, and then the state agencies may spend the money for charitable, industrial, educational, or benevolent purposes. This narrow reading is procedural rather than substantive. The Colorado Supreme Court, however, has not adopted the narrow procedural reading. In 1895, the court struck down the farmer’s relief act, which didn’t actually appropriate the money to the farmers. And although the court upheld the airlines incentive act, the court didn’t uphold the act by distinguishing between the words to and for. Instead, the court’s holding is based on the public purpose doctrine:
[T]he legislation must evince a discrete and particularized public purpose which, when measured against the proscription of Article V, Section 34, preponderates over any individual interests incidentally served by the statutory program.
The court has drawn a distinction between appropriations made for the good of the state versus appropriations made for the good of a smaller group. Of course, the second case’s appropriation was made to help the small group of airline companies. The act, however, helpfully explains that the “health, safety, and welfare of the people of this state are dependent upon the continued encouragement, development, and expansion of opportunities for employment in the private sector….” In other words, an airline placing an operation within Colorado would bring jobs. Specifically, the act requires the new operation to employ 3,000 people with an average salary of at least $45,000. That many jobs would increase tax revenue, lower social welfare spending, have social benefits, etc. Therefore, the public purpose of more jobs outweighs the private interests of helping an airline.
A case can be made that the farmer-relief act wasn’t only charity. It gave the farmers the seeds and grains they needed to grow more food. Everyone in Colorado eats food, so the public would benefit from a greater supply of food. And because farmers grow food from seeds and grain, farmers can’t do the job of farming without seeds or grain. So giving seeds and grain to farmers is an inexpensive way to increase jobs. If more jobs justify helping out an airline, why wouldn’t more jobs and more food justify helping out farmers? Did the act’s proponents fail to argue the case well? Did the court decide that, in this case, the private purpose outweighed the public purpose?
No. The court didn’t decide the farmer-relief case based on the public purpose doctrine. The court didn’t rest its holding on the basis of the act’s private purpose. The court simply held that the “state cannot … extend aid for charitable, industrial, educational or benevolent purposes to any person….” It was a blanket substantive prohibition.
In two weeks, I’ll explain what happened between these two cases.
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.
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.