Colorado LegiSource

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

Author: olls

  • Introduction to Statutory Construction – The Plain Meaning Rule

    Editor’s Note: During the 2019 legislative interim, LegiSource will repost a series of seven articles on statutory construction, which was originally posted over several months from 2013-2016. We are posting the first article this week and will continue posting the articles every other week through October 10. This article was originally posted September 12, 2013.

    By Julie Pelegrin

    You’ve worked hard to get your bill through both houses and onto the Governor’s desk. You worked with your colleagues on amendments to be sure the bill language clearly and explicitly said just what you intended. Now, the act is signed and on its way to implementation and you can rest easy. Right? Hopefully right. But there may be some people who don’t agree on what this new statute means or on what your carefully crafted language says. Some of these disagreements may be so serious that someone files a lawsuit asking the court to interpret the precise meaning of this new statute. How is the court going to interpret your bill and decide what it means?

    This is the first article in a series that looks at statutory construction—how courts approach interpreting a statute and the various rules that they apply. Generally, a court presumes that when a legislature enacts a statute, the legislators understand and apply the same rules of statutory construction that a court applies when interpreting the statute. This series of articles is intended to provide a helpful and informative overview of those rules.

    We’ll begin the series by looking at one of the basic ground rules a court applies when reading statutes. When someone asks a court to interpret a statute, the first thing the judge does is read the statute. If the statutory language is clear on its face and there is no reasonable doubt as to its meaning, then the judge will simply apply the language of the statute to the case at hand. This is known as the “Plain Meaning Rule.” The judge will decipher the plain meaning of a statute by applying the ordinary, everyday definitions of the statute’s words, unless the statute itself provides specific definitions of the words.

    Colorado actually has a statute, section 2-4-101, C.R.S., that supports the Plain Meaning Rule:

    Words and phrases shall be read in context and construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.

    In giving the ordinary meaning to words and phrases, the judge will avoid an interpretation that leads to an illogical or absurd result. The judge will also avoid an interpretation that would defeat the obvious intent of the statute.

    And as section 2-4-101, C.R.S., requires, the judge will read the statute in context, as a whole and try to give consistent and sensible effect to all parts of the statute. A judge assumes that the General Assembly intended the entire statute to be effective and did not include any statutory language that has no meaning or effect.

    Unfortunately the meaning of a statute is not always plain. A judge may find that the language of a statute can be reasonably read to have two or more meanings. Also, a judge may find that there are two or more statutes that apply to a particular situation. The meaning of each statute may be plain, but each statute, as applied, will result in different outcomes. When this happens, the judge will likely find that the statute is ambiguous.

    At this point, the judge may turn to the legislative history to try to determine the legislature’s intent when it enacted the statute. In Colorado, the legislative history consists almost entirely of the recorded debates and discussions concerning the bill in the committee of reference and on the floor. The court may also consider the goal that the statute is intended to accomplish, if that is clear from the legislative history or from the statutory legislative intent, and the consequences of a particular interpretation of the statute.

    In addition to the legislative history, a judge may apply one or more of the canons, or rules, of statutory construction to interpret a statute. Colorado has codified many rules of statutory construction that we’ll consider in later articles. There are also several widely accepted canons of construction that courts have developed and used to interpret statutes and other legal documents for many years. Subsequent articles will discuss these, as well.

    It is important to remember that, if the General Assembly disagrees with a court’s interpretation of a statute, the General Assembly can amend the statute to clarify its intent. But when the court interprets the constitution or finds that a statute violates a constitutional provision, the General Assembly, if it disagrees, can override the court’s opinion only by referring a constitutional measure to the ballot.

  • Recent Developments in Single Subject Requirement Case Law – Part I

    By Jason Gelender

    The single subject requirement of the Colorado constitution prohibits bills enacted by the General Assembly, constitutional amendments submitted for a vote of the people by the General Assembly, and initiated statutory changes and constitutional amendments from addressing more than one subject. While three distinct constitutional provisions separately prescribe the rule for bills, referred constitutional amendments, and initiatives, they all respectively state that a bill, referred constitutional amendment or initiative cannot “contain more than one subject, which shall be clearly expressed in its title, but if any subject shall be embraced in [the bill, referred constitutional amendment, or initiative] which shall not be expressed in the title, [it] shall be void only as to so much thereof as shall not be so expressed.” [1]

    Most of the single subject case law from the last quarter century addresses proposed initiatives and is generated when the Colorado Supreme Court considers appeals of Title Board decisions.[2] But two recent single-subject challenges to bills enacted by the General Assembly have yielded interesting and informative, albeit not precedentially binding, Denver District Court decisions. One case involves a successful challenge to a bill that was not especially lengthy, complex, or broad in its scope; the other case involves a thus far unsuccessful challenge to a bill that was lengthy, complex, and broad in its scope.

    This post, which is the first of a three-post series on recent developments in single subject case law, examines the first of those two decisions. The second post will examine the second of those decisions, and the third post in the series will examine the Colorado Supreme Court’s recent decision holding that a proposed initiative to repeal the Taxpayer’s Bill of Rights (TABOR) contains a single subject.

    The first case, Arapahoe Cnty. Sch. Dist. No. 1 et al. v. Colorado,[3] involved a single subject challenge to House Bill 18-1306, “Concerning ensuring education stability for students in out-of-home placement, and, in connection therewith, making an appropriation.” House Bill 18-1306 contained six substantive sections;[4] the plaintiffs alleged that section 7 of the bill violated the single subject requirement. Section 7, which was added to the bill in the Senate, eliminated a requirement that a school district that wishes to furnish transportation to a child who resides in another school district first obtain the approval of the school district in which the child resides. The plaintiffs contended that it violated the single subject requirement because, unlike the other substantive provisions of the bill, it did not apply only to “students in out-of-home placement.” The Denver District Court agreed with the Plaintiffs. In an order granting their motion for summary judgment, the court declared “[s]ection 7 of House Bill 18-1306 … to be void and of no effect” on the grounds that:

    • The “modern application” of the single subject requirement “requires an act and its title [(1) to] notify the public and legislators of pending bills so that all may participate; (2) to make the passage of each legislative proposal dependent on its own merits; and (3) to enable the governor to consider each single subject of legislation separately in determining whether to exercise veto power;”
    • The title of the bill “is not general,” but instead “is narrow in its focus, specifically ‘out of home’ placed students;”
    • The title therefore did not provide proper notice to the General Assembly or the public that section 7 of the bill modified “transportation for all students, in all school districts, without any restrictions or qualifications;”
    • Because section 7 of the bill was identical to language that had been included in a different bill, Senate Bill 18-228, which the General Assembly had postponed indefinitely, section 7 could not have passed on its own merits and its inclusion in the bill was “logrolling;” and
    • The addition of section 7 to the bill deprived the Governor of the opportunity to consider the remainder of the bill, all of which had a necessary and proper connection to the narrow single subject of ensuring educational stability for out-of-home-placed students, separately from section 7.[5]

    The state initially planned to appeal the order granting plaintiffs’ motion for summary judgment, but the General Assembly rendered the appeal moot by enacting Senate Bill 19-039, which restored the district of residency approval requirement that the voided section 7 of House Bill 18-1306 had sought to eliminate.

    What can we learn from the Denver District Court’s Order in Arapahoe Cnty. Sch. Dist. No. 1?

    • First, legislators, bill drafters, and anybody else who happens to get involved in the drafting of a bill should make sure to carefully consider and review the scope of the bill’s title before the bill is introduced. House Bill 18-1306 did not fail to meet the single subject requirement because it was a lengthy or complex “omnibus” bill that addressed a myriad of matters that could not reasonably fit under even a broad title. It failed because the title was drafted too narrowly to encompass all of its provisions, specifically a provision that was added by amendment, which a broader title could have encompassed.
    • Second, there is a real risk that a provision that actually relates to the single subject of a bill will nonetheless be found to create a second subject if the provision also relates to other matters. The issue with section 7 of House Bill 18-1306 wasn’t that it didn’t apply to students in out-of-home placement, but that it also applied to all other students. Again this risk can often be mitigated by drafting a bill with a broad general title.
    • Third, a narrow title remains a useful tool for limiting the scope of a bill and preventing the bill from being amended in a way that is contrary to the sponsors’ intentions. This tool is especially useful for a bill sponsor who knows, before a bill is introduced, exactly what the sponsor wants to accomplish and how it should be accomplished. But a narrow title does carry some risk if, after introduction, the policy goal of the bill or the means of achieving it change.

    In the next posting, we’ll discuss the lessons to be learned from the district court’s decision in TABOR Foundation et al. v. Colorado Dept. of Health Care Policy and Financing et al., which addressed a single subject challenge to Senate Bill 17-267, “Concerning the sustainability of rural Colorado.”

     

    [1] For general information about the single subject rule, see the Colorado LegiSource post titled “Single Subject Requirement Prevents a Multitude of Evils” (https://legisource.net/2012/12/06/single-subject-requirement-prevents-a-multitude-of-evils/)

    [2] Before a proposed initiative to change the Colorado Revised Statutes or amend the Colorado constitution can be circulated for signatures and placed on the ballot, the Title Board, a three-member statutory body composed of designees of the Secretary of State, the Attorney General, and the Office of Legislative Legal Services, must determine whether the measure satisfies the single subject requirement and, if it does, “designate and fix a proper fair title” for it. Sections 1-40-106 and 1-40-106.5, C.R.S. Appeals of Title Board decisions are made directly to the Colorado Supreme Court. Section 1-40-107 (2), C.R.S.

    [3] Case No. 2018CV32901 (Denver Dist. Ct.).

    [4] Sections 2 through 7 of the bill included substantive amendments to Colorado law, while section 1 contained a non-statutory legislative declaration, section 8 contained an appropriation, and section 9 was a standard “act subject to petition” clause.

    [5] Omnibus order re: plaintiffs’ motion for summary judgment, defendant’s motion for summary judgment, and defendant-intervenors’ motion for summary judgment (December 14, 2018).

  • LegiSource is on Hiatus

    The Colorado LegiSource is taking a break for the next several weeks. We expect to resume weekly postings on July 11. 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.

  • Answers for the 120th Legislative Day

    By Julie Pelegrin

    Closing in on the final gavel of the first regular session of the 72nd General Assembly, our readers likely have a lot on their (tired) minds. So for our final posting of the session—and the final posting before LegiSource resumes July 11—we’re offering answers to some of the questions you may be asking.

    Why is it called a filibuster?

    We’ve heard the word “filibuster” used a lot during this session, and we’re all well aware of its definition: “An action such as a prolonged speech that obstructs progress in a legislative assembly while not technically contravening the required procedures.”[1] But what is the derivation of this word?

    The Online Etymology Dictionary (Dictionary) says the word likely came from the Dutch word vrijbueterin the 1580s was rendered flibutor, and means “pirate” or “freebooter”. The word was used in reference to mainly French, Dutch, and English “adventurers” of the 17th century, many of whom were infamous for ransacking the Spanish colonies in the West Indies.

    By the mid-1800s, the English version—filibuster—referred to American adventurers who went down to Central America to foment and lead revolutions to overthrow the local governments. The Dictionary provides an interesting quote from Harper’s New Monthly Magazine, January 1853:

    FILIBUSTERING is a term lately imported from the Spanish, yet destined, it would seem, to occupy an important place in our vocabulary. In its etymological import it is nearly synonymous with piracy. It is commonly employed, however, to denote an idea peculiar to the modern progress, and which may be defined as the right and practice of private war, or the claim of individuals to engage in foreign hostilities aside from, and even in opposition to the government with which they are in political membership.

    With regard to the legislative process, the word is usually used as a verb, but it retains the sense of the original noun. The Dictionary suggests that when the word began to be used regularly in the 1860s to describe prolonged speeches to obstruct progress in the legislature, the definition was extended in this way “because obstructionist legislators ‘pirated’ debate or overthrew the usual order of authority.”

    For an interesting explanation of the use of filibustering in the U.S. Senate and the development of the cloture rule, you might want to read this testimony by Sarah A. Binder. She was a Senior Fellow at the Brookings Institute when she testified before the U.S. Senate Committee on Rules and Administrations in 2010. Spoiler alert: She blames Aaron Burr for enabling filibustering in the U.S. Senate.

    This has been a really busy session. How many bills were introduced?

    While everyone has worked really hard this session, the number of introduced bills is actually less than the number introduced in most of the preceding four legislative sessions.

    This year the House introduced 335 bills, which compares with:

    • 441 introduced in 2018
    • 374 introduced in 2017
    • 467 introduced in 2016
    • 392 introduced in 2015

    The Senate introduced 263 bills this year, which compares with:

    • 280 introduced in 2018
    • 306 introduced in 2017
    • 217 introduced in 2016
    • 289 bills introduced in 2015

    Although the Senate introduced fewer bills in 2016 than it did this year, the overall total for 2016 was 684. This year, it’s only 598.

    Nearing the end of the 119th legislative day, 511 of those 598 bills have been acted on. Of those bills: 109 were killed in committee, two lost on second reading, three lost on third reading, 202 are in the process of final enrolling, 39 are sitting on the Governor’s desk; and the Governor has already signed 155.

    How long does the Governor have to act on a bill?

    Under article IV, section 11 of the Colorado constitution, if the Governor receives a bill and there are more than 10 days left in the session, the Governor has 10 days to sign or veto the bill or the bill becomes law without his signature. If the Governor vetoes a bill, he must send it back to the House and the Senate with a letter explaining his reasons for vetoing the bill. The House and the Senate may then reconsider the bill and if two-thirds of the members elected to the House and two-thirds of the members elected to the Senate reapprove the bill, it becomes law despite the Governor’s veto.

    If, however, the House and the Senate adjourn sine die before the Governor’s 10 days for action have passed, then the Governor has 30 days after sine die to act on the bill before it becomes law without his signature. And if he vetoes the bill, there is no opportunity for an override vote.

    What does sine die mean? And how do you pronounce it?

    The exact translation of the Latin term, “sine die”, is “without a day.” As applied, it means that the General Assembly adjourns without specifying the day on which they are returning. During the session, when each house adjourns at the end of a legislative day, the motion specifies the time and the date when the house will reconvene. On the last day of the session, however, the motion is to adjourn sine die – no return date specified.

    As for how it’s pronounced, there seems to be a difference of opinion in the online dictionary electronic pronunciations. Check a variety of websites and you’ll hear sign-uh die-ee; sin-ay dee-ay; and even sign-die. Guess that’s what happens when the people who originally spoke the language have been dead for several centuries.

    So when are they coming back?

    Just because they adjourn sine die doesn’t mean they don’t know when they’ll be back. As our regular readers know, article V section 7 of the state constitution requires the General Assembly to convene in regular session by 10:00 a.m. no later than the second Wednesday of January each year. One of the last measures to pass each year is a joint resolution that establishes the convening date for the next regular legislative session. This year, Senate Joint Resolution 19-009 sets Wednesday, January 8, 2020, as the first day of the second regular session of the 72nd General Assembly.

    That said, the Office of Legislative Legal Services looks forward to welcoming everyone back next January … or sooner if the Governor calls a spec…. no, we’re not even going to put that in type.

    [1] Definition from the Google Dictionary.

  • Parsing Powers: Legislative Review of State Department Rules

    Parsing Powers: Legislative Review of State Department Rules

    by Julie Pelegrin

    Each year, executive branch agencies in Colorado adopt between 400 and 500 sets of rules creating many thousands of pages of rules and accompanying materials. Specifically, in 2018 alone there were 457 sets of rules adopted. Counting the rules and corresponding materials,that totals up to 26,971 pages. That’s a lot of rules! And every one of those rules, along with the corresponding materials, was read and analyzed by a staff member of the Office of Legislative Legal Services (OLLS).

    This rule review function provides an instructive example of how the vague constitutional concept of separation of powers actually works between the legislative and executive branches. The legislature has the authority to make the laws. But in some instances, it makes more sense for the persons working directly with a program to decide the implementing details. In those situations, the legislature delegates some of its legislative authority to an executive branch department, allowing it to adopt rules. However, in adopting rules, the department must comply with statutes and cannot go beyond the authority that the legislature delegated to it. To ensure this does not happen, the legislature retains the ability to review the executive branch department’s rules and approve only those rules that are within the department’s rule-making authority and do not conflict with state or federal law.

    This process for reviewing and approving executive branch department rules is found in the State Administrative Procedure Act (APA). The APA requires each department to submit every rule that it adopts or revises within a one-year period to the OLLS for review under the supervision of the Committee on Legal Services (Committee). The standard of review is based on language in §24-4-103 (8) (a), C.R.S., which states, “No rule shall be issued except within the power delegated to the agency and as authorized by law.” The vast majority of rules meet these requirements. But sometimes a rule conflicts with a statute or the constitution or does not fit within the limits of the department’s rule-making authority. At that point, the Committee and the General Assembly turn to the process laid out in the APA.

    The APA establishes a year-round cycle for reviewing rules.  Under §24-4-103 (8), C.R.S., rules adopted during the one-year period from November 1 through October 31 automatically expire on the next May 15, unless the General Assembly extends the rules by passing a bill.  This annual bill is called the Rule Review Bill and is sponsored by the Committee. This year, it’s introduced as S.B. 19-168. The Rule Review Bill postpones the automatic expiration of all of the adopted department rules, except for those rules listed in the bill that the Committee has decided should expire because the rules: 1) lack statutory authority, 2) exceed statutory authority, or 3) conflict with a state or federal statute or constitutional provision.

    During the process of reviewing the rules, if the OLLS staff finds one of those three grounds for challenging a rule, the staff contacts the department to discuss the issues with the rule. If the department disagrees with the analysis or is unable to fix the problems identified with the rule, the staff schedules the rule issue for a hearing before the Committee. The OLLS staff writes a memo for the Committee explaining its analysis, and the department may also submit a responsive memo to the Committee.

    At the hearing, the OLLS staff and if, they choose to appear at the hearing and make a presentation, the department staff or the department of law staff representing the department explain their positions to the Committee, and the Committee takes public testimony.  At the end of the hearing, the Committee votes to either extend the rule through the Rule Review Bill or allow the rule to expire. The Committee bases its decision on the legal question of the authority of the rule—not on whether the rule in question is good or bad policy for the state.  After the Rule Review Bill passes, the OLLS staff transmits the bill to the Secretary of State’s office, which removes any expired rules from the Colorado Code of Regulations.

    Sometimes a department will seek a change to a statute to provide authority for a rule. The Committee will not carry a bill to do this, but if an individual legislator introduces and passes such a bill, the Committee will amend the Rule Review Bill so that the newly authorized rule does not expire.

    Another legislative oversight function that the OLLS carries out relates to tracking legislation that requires or authorizes departments to adopt rules. Many legislators, after passing bills that create new programs, later ask, “Did the department ever adopt rules to implement my bill?” Section 24-4-103 (8) (e), C.R.S., requires the OLLS to identify rules related to newly enacted bills and notify prime sponsors and co-sponsors when the department adopts rules required or authorized by the new legislation. The OLLS sends out e-mail notices to prime sponsors and co-sponsors when the new rules are adopted.

    But what if you want to know whether a department ever adopted rules to implement a bill you heard in a committee of reference?  Or what if you’re a legislator and you no longer have the e-mail notice?  Anyone can look up rule implementation information at any time on the OLLS’s homepage under a tab entitled Rule Review. The OLLS maintains a chart that is organized by committees of reference and lists each bill for which rules are adopted.  The chart also provides a link to the rule information that each department files during the rule adoption process.

    Section 24-4-103 (8) (e), C.R.S., also requires the OLLS to notify the current members of the applicable committees of reference when these rules are adopted.  Each January, the OLLS sends an email notice to the committees of reference with the chart of rules that the OLLS has compiled.

    So, while the legislature is willing, when appropriate, to delegate some of its authority to the executive branch by authorizing a department to adopt rules, the legislature keeps a close eye on how that authority is exercised, ensuring that the department stays within the lines.

  • Automatic Rule Changes During the Last Days of Session

    By Julie Pelegrin

    (A previous version of this article was posted on April 30, 2015, as “The Race is On to the End of the Session: Automatic Rule Changes Pick Up the Pace”.)

    On May 4, legislators, legislative staff, lobbyists, and capitol reporters can all hit the snooze button and roll over for another hour of sleep. But between now and then, there are several amendments to read, bills to consider, and differences to resolve. To help ensure that both houses can complete their work by midnight on May 3, the legislative rules automatically speed up or suspend certain procedural requirements in the last few days of the session.

    Last 5 Days of Session:

    • Joint Rule 7: One day after a bill is assigned to a conference committee, a majority of either house may demand a conference committee report, and the committee must deliver the report before the close of the legislative day during which the demand is made. If a bill has been assigned to a conference committee at any time during the session and the committee hasn’t turned in a report, the committee must report the bill out within these last five days of session.

    Last 3 Days of Session:

    • House Rule 25 (j)(3); Senate Rule 22 (f): Each House committee chairperson must submit committee reports to the House front desk as soon as possible after the committee acts on a bill. No more waiting for two or three days to turn in the report. This requirement—to submit the committee report as soon as possible—actually applies to Senate committee chairs in the last 10 days of session. And during these last 10 days, at the request of the Senate Majority Leader or President, the chairman must submit the committee report immediately. If that doesn’t happen within 24 hours after the request, the committee staff person is required to submit the report to the Senate front desk on the chairman’s behalf.
    • House Rule 36 (d); Senate Rule 26 (a): The House and the Senate can consider the amendments made in the second house without waiting for each legislator in the first house to receive a copy of the rerevised bill and for the notice of consideration to be printed in the calendar.
    • House Rule 36 (d); Senate Rule 26 (b): Legislators can vote on conference committee reports as soon as the reports are turned in to their respective front desks—even if the report has not been distributed to the members and has not been calendared for consideration. The usual practice, however, is to try to distribute copies of conference committee reports to legislators before the vote.
    • House Rule 35 (a): Throughout most of the session, a Representative may give notice of the intention to move to reconsider a question. In this case, the Representative has until noon on the next day of actual session to move to reconsider. However, during the last three days of session, a member may not give notice of intention to reconsider.
    • Senate Rule 18 (d): Throughout most of the session, a Senator may give notice of reconsideration, and the Secretary of the Senate will hold the bill for which the notice was given for up to two days of actual session. During the last three days of session, however, this rule is suspended, and a Senator cannot hold up a bill by giving notice to reconsider.
    • House Rule 33 (b.5): Usually, the House rules only allow technical amendments on third reading; offering a substantial amendment on third reading may result in the bill being referred back to second reading. During the last three days of session, however, a Representative may offer a substantial amendment to a bill on third reading.

    Last 2 Days of Session:

    • House Rule 35 (b) and (e): A motion to reconsider usually requires a 2/3 vote to pass. In the last two days of session, however, a motion to reconsider – in a House committee or in the full House – requires only a majority vote.

    Before the 117th legislative day, the Speaker of the House or the President of the Senate may announce that the House or the Senate, respectively, is in the last three days of the legislative session. This does not mean that either the House or the Senate will adjourn sine die before the 120th legislative day, but it does trigger the rule changes that apply in the last three and last two days of session.

    Digest of Bills

    With these expedited procedures, bills will probably be moving quickly. If you find yourself wondering which bills passed and what they do, you’ll want to check the digest of bills. The Office of Legislative Legal Services (OLLS) annually publishes the digest, which contains a summary of each bill enacted during the legislative session, organized by subject matter. The OLLS will publish a preliminary digest by May 2 that will include all of the bills that have passed and been signed by the Governor or allowed to become law by that date. The OLLS will publish the final digest once the 30-day period for Governor action is passed. Copies of the preliminary and final digest will be available in Room 091 in the Capitol basement and posted on the OLLS website.

  • Statutory Revision Committee: Four Years In and Going Strong

    by Jessica Wigent

    In the four years since its (re)creation in 2016, the Statutory Revision Committee (SRC) (codified in part 9 of article 3 of title 2, C.R.S.) has, in accordance with its charge, introduced and passed more than 70 bills to modify or eliminate antiquated, redundant, or contradictory rules of law to harmonize the statutes with modern conditions.

    During the lively hearings held during the 2018 interim and the 2019 legislative session, committee members heard memo presentations and testimony on issues including the federal preemption of Colorado statutes concerning human smuggling; duplicative statutes governing the disposal of cancer drugs; and obsolete statutes concerning powers of the board of health that arguably should’ve been updated decades ago.

    Overall, hundreds of pages of statutory text have been repealed or brought into the 21st century through SRC-recommended legislation.

    Membership
    The SRC consists of eight legislators (two appointed by the majority and minority leadership in each house) and two nonlegislator, nonvoting attorneys appointed by the Committee on Legal Services. The appointees for 2019-20 are:

    • Senator Rachel Zenzinger, Chair
    • Senator Rob Woodward, Vice-chair
    • Representative Jeni Arndt
    • Representative Hugh McKean
    • Senator Dominick Moreno
    • Senator Jack Tate
    • Representative Donald Valdez
    • Representative Kevin Van Winkle
    • Patrice Collins
    • Brad Ramming

    Attending to the Antiquated, Obsolete, and Anachronistic
    The SRC is introducing 19 bills during the 2019 legislative session, including legislation:

    • Correcting a very small, yet significant error in the definition of “appraisal management company” – the word “train” should’ve been “retain” (SB 19-046);
    • Eliminating redundant and potentially confusing language in statute that was created when two bills amended the same section in 2018, concerning the requirements for issuing professional teacher and special services licenses to applicants from another state (HB 19-1059);
    • Clarifying that the scope of a certain sales tax exemption applies to manufactured homes (HB 19-1011);
    • Making consistent the laws and administrative rules that allow payment of taxes by electronic funds transfer; (SB 19-024); and
    • Removing statutes that have been outdated for decades regarding the state board of health and clarifying that the board: Does not accept, handle, or act as a custodian for money appropriated to the department of health and environment (SB 19-082); does not make rules regarding water quality, as that’s the job of the Water Quality Control Commission (HB 19-1071); and hasn’t for more than 50 years tested cancer drugs – that’s the FDA’s job (HB 19-1070).

    How an SRC Idea Becomes a Bill
    Executive department agencies, the judicial branch, interested Colorado residents, and nonpartisan staff from a number of agencies in and around the Capitol, as well as legislators themselves, have brought issues for the SRC to consider. Initially, staff considers these requests and whether they fall within the charge of the SRC and then prepares a memo detailing the requested change, often with a bill draft attached for the SRC to consider.

    In addition, the statutory charge of the SRC includes examining “current judicial decisions.” To that end, the SRC has asked staff to review current statutes that are found by an appellate court to be unconstitutional. Staff annually prepares memos for the SRC to bring attention to these provisions.

    An affirmative vote from at least five of the legislative SRC members is needed to introduce proposed legislation, and the SRC regularly considers more draft bills than it approves. In 2019, the SRC rejected multiple proposals it determined were outside its charge. All proposed drafts are publicly available on the SRC’s website and in the annual report submitted to the General Assembly. You may also email staff for more information.

    The SRC plans to meet twice during the 2019 legislative interim, though they are still finalizing the dates and the issues to be considered. Join the SRC mailing list and be notified when the details are available.

    Know of any antiquated, redundant, or contradictory laws? Please contact the SRC staff via email: statutoryrevision.ga@coleg.gov All meetings are public, and everyone is encouraged to attend or to propose issues to the SRC staff.

  • Conference Committees: A Quick Review of the Options

    by Julie Pelegrin

    Editor’s note: This article was originally posted on March 29, 2018. It has been updated for this posting.

    With just a few weeks left in the 2019 legislative session, a legislator’s thoughts turn to…conference committees!

    So far this session, the House and the Senate have sent just five bills to conference committee. But there are still more than 300 bills pending in the House and the Senate for this session; chances are good, the number of conference committees will increase. So now seems like a good time for a quick refresher course on the ins and outs of conference committee procedure.

    For a bill to go to the Governor, it must pass both the House and the Senate in exactly the same form. If the second house amends a bill, it cannot go to the Governor for signature unless the first house accepts, or “concurs in,” the second house amendments and readopts the bill or unless both houses form a conference committee to create a report that resolves the differences between the two versions.

    There is a third option, but it can be risky. A legislator can move for the first house to adhere to its position (i.e., refuse to consider any changes to the bill proposed by the second house). At that point, the second house can choose to recede from its changes and adopt the version of the bill that the first house passed. However, the second house can also choose to adhere to its position (i.e. refuse to consider adopting the first house’s version of the bill). Most often, when the first house adheres to its position and refuses to discuss a compromise, the second house also adheres. If this happens, the bill is dead.

    But, let’s assume that the bill sponsor moves to reject the second house amendments and request the formation of a conference committee. The conference committee consists of three persons appointed from each house: Two majority party members and one minority party member. The Speaker and the President will each appoint the two majority members from their respective houses, and the Minority Leaders will each appoint the minority members from their respective houses. In most cases, the bill sponsors in both houses are appointed to the conference committee, and the bill sponsors can submit their preferences for the other members they would like to see appointed to the conference committee from their respective houses.

    The conference committee’s report can address any of the differences between the two versions of the bill. But, if the conference committee wants to address language that was not changed by the second house or address an issue that fits within the bill title, but was not included in either version of the bill, the bill sponsors must ask their respective chambers for permission “to go beyond the scope of the differences” between the two versions. Sometimes, the bill sponsors will ask for this permission at the same time that they request a conference committee; more often they do not. The conference committee members can discuss changes that are outside the scope of the differences before they ask for this permission, but the members cannot sign the committee report until both houses have granted the committee permission to go beyond the scope of the differences.

    The date, time, and location for all conference committee meetings are printed in the House and Senate calendars. After agreeing on wording changes to resolve the differences, the committee may adopt the committee report conceptually or, if the bill drafter prepared the report in advance of the meeting, may adopt the committee report as written. For the report to pass, a majority of the conference committee members from each house (i.e. two House members and two Senate members) must approve the report. Following adoption of the report, the committee members who voted to approve the report sign it. A committee member who voted against the report and any committee member who missed the meeting may also choose to sign the report.

    Once the report is signed and turned in to the front desk of the House and the Senate, the house that agreed to go to conference committee, usually the second house, acts first on the report. Usually, the second house adopts the report and readopts the bill as amended by the conference committee report. Then the first house also adopts the report and readopts the bill. At that point, the bill is enrolled and sent to the Governor.

    However, either house may choose to adhere to its position, recede from its position, or reject the conference committee report and ask that a second conference committee be formed. Assuming both houses agree to a second conference committee, they will appoint the members of the second conference committee, which may be the same as the first conference committee, and the committee will meet again and attempt to come to another agreement. Only two conference committees can be appointed for a bill. If either house rejects the committee report of the second conference committee, one of the houses will have to recede and adopt the other house’s version, or the bill is dead.

    This article describes how conference committees usually work. The OLLS has prepared charts for the House and Senate that explain the possible actions, in addition to adopting a conference committee report, that each house may take in resolving differences between the houses. If you are interested in reading the legislative rules on conference committees, you can find them at House Rule 36, Senate Rule 19, and Joint Rules 4, 5, 6, 7, and 8.

  • So How Do Those Amendments Get Into Your Bill?

    By Bethanie Pack

    Each bill faces a long, arduous journey from introduction to the Governor’s desk, a journey that many bills do not complete. But for those that do, this week’s article maps the process and provides some behind the scenes info on how the work gets done.

    Amending Stages of a Bill

    Committee Reports

    In the first house, a bill is introduced by reading the title and bill number (the first of three readings) and is then assigned to committee. Bills are often amended in committee, sometimes with multiple amendments. The Legislative Council staff merges the adopted amendments into a committee report for each bill. These committee reports are read across the House or Senate desk (within three legislative days after the hearing) and then published on the General Assembly’s website. At this point, the Enrolling Room —staff of the House or the Senate whose job it is to enroll each bill by inputting the amendments— merges those amendments into the introduced bill, creating an unofficial preamended version of the bill, which shows what the bill will look like if the committee report is adopted on second reading. If the bill is sent to multiple committees, there will be an unofficial preamended version of the bill after each committee report is read across the desk, which will include all the amendments adopted in each committee to date. Unofficial preamended versions of each bill are available on the General Assembly’s website. Click here for more information on committees of reference.

    Second Reading

    On second reading, the first house Committee of the Whole typically adopts the committee report(s) and sometimes passes additional amendments. Once the first house adopts the Committee of the Whole report, the Enrolling Room merges all of those amendments into the bill, creating the Engrossed version of the bill. Sometimes the Committee of the Whole lasts for many hours and late into the night, and nothing that the Committee of the Whole does is final until the first house adopts the Committee of the Whole report. For example, if Bill A is amended and passed by the Committee of the Whole at 10 a.m. but the Committee of the Whole continues working and is still debating Bill Z at 10 p.m., the amendments to Bill A are not yet adopted and the Enrolling Room cannot create the Engrossed version. The Engrossed versions of the bills are only available after all the bills on the second reading calendar have been addressed, the Committee of the Whole concludes their work, and the first house—sitting as the House or the Senate—adopts the Committee of the Whole report.  Click here for more information on the Committee of the Whole.

    Third Reading

    Generally, third reading amendments are only technical clean-up amendments. If the first house does adopt an amendment on third reading, it can be enrolled into the bill immediately after the bill is passed, creating the Reengrossed version. These amendments are a top priority for the Enrolling Room so that the bill can be transmitted to the second house as soon as possible. Click here for more information on third reading.

    This process is then repeated in the second house. The only difference is that the bill is called Revised after second reading in the second house and Rerevised after third reading.

    Behind the Scenes

    After a bill is amended on the House or Senate floor, staff presses a couple of buttons and then sends the bill off to the printer, right?

    Actually, no. At least four sets of eyes proofread and check the amendments before the amended bill goes to the printer. This process could take minutes or hours depending on the complexity, length, and number of amendments that were passed that day.

    The House and Senate Enrolling Rooms merge the amendments into the bills, and then there is a meticulous proofing process between the Enrolling Rooms and the Publications Team in the Office of Legislative Legal Services before sending the bills to the printer.

    Overview of the Process

    The role of the Enrolling Rooms is to verify that all of the amendments are placed into the bill in the correct place. Next, the Publications Team reviews the amendments in the bill for formatting and publications issues. They are looking for things such as numbering discrepancies, coding errors, punctuation errors, and effective date problems. Then, the amendments are given further review by the drafter whose role is to check the amendments within the context of the bill for any legal or substantive issues. This is important because amendments are confidential until moved and often multiple amendments from different legislators are adopted. The drafter needs to make sure the bill remains cohesive with the added amendments.

    Why so many steps?

    It would be lovely if there was a magical button or fairy dust that placed 105 amending instructions into a 40-page bill, but instead, the process is done manually to catch publishing issues and legal issues that a computer wouldn’t catch. Basically, the process is set up to ensure the best work product possible for the General Assembly, and that means lots of eyes on the bills throughout every step of the process, from the first draft to the Governor’s signature.

    Did you know?

    • Once the Enrolling Room and Publications Team “approve” the bill with the amendments merged in, it goes public online right away.
    • You can look at the bill with the committee amendments before the committee report is adopted on second reading. It’s called a preamended version. It’s an unofficial version, but it’s a helpful tool.
      • It’s available after the committee report is read across the desk and the process discussed above is completed.
      • You can find unofficial preamended versions on the General Assembly’s website when you search for the bill, scroll down to the “Bill Text” section, and then toggle the “Preamended Versions” dropdown menu.
  • Requesting an Interim Committee? All You Need is a Letter

    Requesting an Interim Committee? All You Need is a Letter

     (Reprinted with updates for the 2019 Legislative Session)

    Pursuant to section 2-3-303.3, C.R.S., a legislator who thinks a group of his or her colleagues should study a particular issue during the interim must submit a written request or formal letter to the Legislative Council for consideration and prioritization.

    Requesting the creation of an interim study committee is a fairly simple process. A legislator starts by contacting either the Office of Legislative Legal Services or the Legislative Council Staff office to initiate a written request or letter for the creation of the interim study committee. Legislators can also initiate the request through the iLegislate iPad application. The only information the legislator needs to provide when initiating the written request is the general topic that the interim committee will study. Both offices will assign staff to work with the legislator to develop the necessary details for the request and to prepare and finalize a letter. The legislator can also identify lobbyists or others who are authorized to work with staff in crafting the language of the letter.

    The final letter must specify key details concerning the interim committee, such as:

    • The scope of the policy issues the committee will examine;
    • The number of legislators on the committee;
    • How many times the committee will meet;
    • Whether a task force is needed to assist the committee; and
    • An estimate of the number of bills the interim committee may request to address the issues it studies.

    The legislator who submits the request may ask other legislators who are in favor of creating the interim study committee to sign on as “supporters” of the request, similar to signing on as cosponsors of a bill or resolution. Unlike bills and resolutions, however, a letter requesting the creation of an interim study committee cannot have joint prime sponsors.

    Once the letter is ready, the legislator must submit it to the Legislative Council for consideration by the Executive Committee. For the 2019 legislative session, the deadline for submitting this letter is Friday, April 5, 2019.  Legislative Leadership has stated no exceptions will be granted on this request deadline.

    To help ensure adequate time to prepare the final letter for submission to the Executive Committee, a legislator should submit his or her request for a letter to the Office of Legislative Legal Services or the Legislative Council Staff office no later than Tuesday, April 2, 2019.

    The Legislative Council will meet no later than Friday, April 19th, this year to review and prioritize all of the interim study requests. Before that meeting, the Director of Research of the Legislative Council will review the 2019-20 legislative budget and report to the Executive Committee of the Legislative Council the number of interim committee meetings that are funded for the 2019 legislative interim. The Legislative Council will consider this information in deciding how many interim studies to prioritize. The President of the Senate, the Speaker of the House of Representatives, and the Minority Leaders of the Senate and the House will appoint the legislative members of the prioritized interim committees.

    This process is intended for one-time committees that meet during one interim period. Legislators who want to create a long-term, statutory committee will need to do so by introducing a bill.

    For questions, please contact the Office of Legislative Legal Services at (303) 866-2045 or the Legislative Council Staff office at (303) 866-3521. A template of the letter used to request an interim study committee can be found here.