Colorado LegiSource

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

Author: olls

Does the Colorado Constitution Prohibit Benevolent Legislation? [Part 2]

by Jery Payne

If you haven’t read the May 14^th post , you will probably need to read it to make sense of this week’s post. But for a quick reminder: In the late 19^th 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 20^th 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 20^th 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.

May 28, 2020
The Domino Effect of a Delayed Adjournment Sine Die

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 3^rd 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 6^th (the scheduled 120^th 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 26^th 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 6^th, 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 6^th would have fallen on August 5^th. By comparison, if the legislature reconvenes on May 26^th, adjournment sine die may not occur until August 6^th, pushing back the 90^th day to November 4^th, 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 6^th, maybe as early as June 12^th, 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 4^th this year. So even optimistically, if the General Assembly were to adjourn sine die on June 12^th, the 90^th day would be September 10^th, 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 2^nd. 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 1^st to avoid a program automatically repealing (“sunsetting”) on that date. If the General Assembly had adjourned on May 6^th 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 12^th, pushing the 90^th day back to September 10^th, the earliest a bill with a petition clause would become effective would be at 12:01 a.m. on September 11^th, long after the September 1^st 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.

May 21, 2020
Does the Colorado Constitution Prohibit Benevolent Legislation? [Part 1]

By Jery Payne

Toward the end of the 19^th 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 20^th 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.

May 14, 2020
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.

May 8, 2020
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.

April 30, 2020
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.
April 23, 2020
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 25^th 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 25^th 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 (28^th 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 (26^th 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 (29^th 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 (30^th President, 1923-1929).

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

Future President Herbert Hoover (31^st 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

April 16, 2020
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.

April 7, 2020
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.
March 26, 2020
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!

March 19, 2020