Colorado LegiSource

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

Author: olls

  • 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.

  • What Happens When Multiple Bills Amend the Same Provision of Law?

    by Bethanie Pack

    It’s very common for multiple bills to amend the same provision of law in a given session, because let’s face it, great minds think alike, and there are a lot of great minds in our state legislature. So, when this occurs, one of five things can happen:

    1. The bills are harmonized upon publishing;
    2. Provisions are renumbered;
    3. The bills are amended without need of a conflict letter from the Revisor of Statutes;
    4. The Revisor of Statutes issues a conflict letter to the bill sponsors of both bills notifying them of the conflict and how to address it; or
    5. As a last resort, one of the bills supersedes the other.

    So what in the world does all this mean? Let me explain.

    After a bill passes second reading in each house, the publications team (a team in the Office of Legislative Legal Services that works under the direction and supervision of the Revisor of Statutes) performs a database search against all other bills in the current legislative session to ensure no bills change the same provision of law in a conflicting manner.

    Harmonize

    If only Bill A and Bill C are adopted, then the publications team can harmonize the section upon publication, and there is no conflict. In other words, the two bills “play nice together.” The section would appear as:

    45-1-101. Residential watering. A homeowner may water the lawn for a maximum of one hour up to five times a week.

    The changes from both bills can be combined in this section and they can be harmonized.

    Renumber/Reletter

    Now, ignore Bills A, B, and C for a moment, and take as an example two bills that both add a subsection (2) to the current version of 45-1-101. If both bills pass, one of them will be renumbered to add a subsection (3).

    Conflict Letter

    Back to our original example.  If both Bill A and Bill B were to pass, they cannot be harmonized; there is a conflict. The section of law cannot state that a homeowner may water the lawn both three and five times a week. In this scenario, the Revisor of Statutes writes a conflict letter, as directed by Joint Rule 16, to give notice of conflicting provisions to the prime sponsors of the conflicting bills.

    These letters are paper copies delivered to the desks of the prime sponsors upon transmittal to the opposite house after third reading. A copy of the letter is also stapled to the billback. The letter contains a statement about the conflict and a statement that the bill drafters know about the conflict and can provide guidance on how to address the issue.

    The publications team runs the conflict check after second reading in each house, which sometimes gives the drafter enough time to confer with the prime sponsor and draft a third reading amendment to fix the conflict. This would eliminate the need for a conflict letter before the bill gets transmitted to the opposite house.

    Typical resolutions to conflicts by amendment include mirroring the language in both bills to make them harmonizable, making the conflicting provision in one bill contingent on the passage of the other bill so that both provisions don’t go into effect, or eliminating the conflicting provision or moving it to a different place in statute. But sometimes, none of these approaches will work because the bill sponsors don’t agree to the amendments that would harmonize the bills or because harmonizing the bills would defeat the purposes of the bills. In these situations, the legislators may decide to allow one bill to supersede the other.

    Supersede

    The goal of the publications team is to give effect to every bill. So, allowing one provision of law to supersede another is the last resort and done if an amendment to fix the issue was not adopted. If two bills pass that cannot be harmonized, renumbered, or relettered, and they were not amended to “play nice together,” then one bill will supersede the other where the conflicting provision occurs. Which provision takes effect is typically based on the effective dates of the bills—the amendment with the later effective date prevails. Occasionally two conflicting bills will have the same effective date, in which case the provision that prevails is the one in the bill the Governor signs last. In some cases, however, the bill with the earlier effective date will prevail because it repeals the provision. A bill that repeals a provision will supersede a bill that amends the same provision, even if the amending bill has a later effective date, because the repealed provision is gone by the time the amending provision takes effect, and it cannot be brought back to life to implement the amendment.

    For more information on effective dates, see “When Does an Act become a Law? It depends.”

  • A Tale of Two Amendments: The Property Tax Dilemma

    By Vanessa Cleaver

    As any long-term resident of Colorado knows, over the past five years the state has undergone an explosive growth in population, making it one of the fastest growing states in the United States. Consequently, Denver’s housing market is booming, and Denver-metro residents have likely seen a steady rise in their property’s value. This increase would normally correlate to an increase in residential property taxes, but because of an interesting provision in the state constitution known as the “Gallagher Amendment,” residential property tax rates remain unequivocally low. For rural areas that are primarily supported by property taxes, and where property owners have not seen the exponential increase in property value that Denver has, the Gallagher Amendment has left local governments with less revenue to support a steadily growing population.

    Enacted as part of a constitutional amendment in 1982, the Gallagher Amendment was initially designed to maintain a constant ratio between property tax revenue from residential property and from commercial property. Although perhaps not its original intent, Gallagher has since kept property taxes low for homeowners so they aren’t financially overburdened by their property tax bill should their property value increase. It establishes a formula precluding the assessed value[1] of all residential property from being more than a target percentage[2] of the total assessed value of all real property in the state. Businesses, on the other hand, are responsible for fulfilling the remainder of that target percentage.

    Rather than set varying assessment rates across the state, Gallagher instead sets one statewide rate for residential property and one for commercial property. The commercial assessment rate was set at a fixed 29 percent while the residential assessment rate (RAR) was left to float up or down. Since there’s no set minimum for the RAR, it can drop as low as it needs to in order to uphold that constitutionally mandated balance between commercial and residential property. As complicated as all that sounds, basically what it comes down to is this: When residential property values go up relative to non-residential values, the RAR decreases; when property values drop, the RAR is technically supposed to increase again.

    But to add to the complexity of Gallagher, in 1992 voters passed an amendment to the Colorado constitution, commonly known as “TABOR,” which states, in part, that all increases in the valuation for assessment ratio for a property class must be approved by voters. This new restriction made any rise in the RAR subject to voter approval. Even in those years when Gallagher dictated an increase, the RAR remained unchanged because the General Assembly did not seek voter approval for the increase under TABOR. Since the inception of Gallagher, and especially since being tethered to TABOR, the RAR has been in steady decline. In 1983, the RAR established in the state constitution was 21 percent, the highest the rate has been in the past 30 years. Currently, the RAR is 7.2 percent,[3] and it appears that the General Assembly may need to lower it again in future reassessment cycles.[4]

    So what does all this have to do with local governments?

    With the exception of municipalities, a large number of local governments get most of their revenue from property taxes. Services such as fire protection, public education, and the establishment and operation of local libraries are primarily funded through the collection of property taxes. If there’s a decrease in that revenue, then those types of local governments struggle to provide even the most necessary services to their residents. Over the last few years local governments in rural Colorado have seen a significant decrease in property tax revenue. Specifically, fire districts, school districts, library districts, and other special districts have been impacted in their ability to support the populations they serve. This drop in revenue is primarily attributed to the continued fall of the RAR.

    As property values increase in the more metropolitan areas of the state, the RAR continues to fall to keep property taxes from going over the target percentage required by the Gallagher Amendment. For the Denver metro area, this drop in the RAR hasn’t had nearly as significant an impact on revenue, because it has a denser population to support it, and because home values in Denver have skyrocketed. But in rural Colorado, home values, as well as local populations, aren’t experiencing that same boom, and in some cases rural residents are paying less in property taxes than they have in years past.

    Prior to the passage of TABOR, a special district could float its mill levy (the number of mills assessed by a local government against the assessed property value, resulting in more property tax revenue) to counteract any cyclical economic cycles and help protect its primary revenue source. For example, a special district could raise its mill levy when the RAR decreased to ensure the incoming property tax revenue remained constant, and then decrease the levy if property values increased again. Since TABOR’s passage, though, special districts can float their mill levies down but are prohibited from floating their mill levies back up without a vote of the people, a costly and sometimes fruitless endeavor.

    Fire protection districts in particular have voiced great concern over their capacity to fight the wildfires that ravage the state every summer with a steadily decreasing budget, staff, and resources. In 2018, after being urged by the Colorado State Fire Chiefs, in conjunction with the Special District Association of Colorado, former Governor John Hickenlooper filed interrogatories with the Colorado Supreme Court asking them to weigh-in on the issue. The former governor submitted three legal questions: 1) whether TABOR and the Gallagher Amendment conflict with one another in the way they affect property taxes; 2) whether TABOR should take precedence over Gallagher; and 3) whether Gallagher should be stricken from the constitution altogether. The Court, however, declined the interrogatories.

    The property tax dilemma has, for now, been left in a state of uncertainty. Until a more permanent solution is reached that meets both the needs of taxpayers and local governments, the Gallagher Amendment in its current construct will continue to govern property tax law.

    [1] “Assessed value” is the base amount, which is equal to the actual value multiplied by the assessment rate, upon which property taxes are levied. A local government may assess a certain number of property tax mills against the assessed value of a piece of property. A mill is equal to 1/1000 of one dollar or $0.001.

    [2] The target percentage is used to maintain the ratio between residential property tax revenue and commercial property tax revenue. At Gallagher’s onset the target percentage for commercial property was 55 percent, with residential property responsible for the remaining 45 percent. But over the years the target percentage has slightly deviated from this 55/45 split. To give you an idea, in 2017 it was 54.33/45.67, and in 2015 it was 54.24/45.67. https://apps.larimer.org/tencounty/conference/2017/Gallagher-Slides-updated.pdf

    [3] § 39-1-104.2 (3)(p), C.R.S.

    [4] The Residential Assessment Rate Study for 2019-2020 projecting the new residential assessment rate to be 6.95 percent: https://drive.google.com/file/d/1o3HgqYCkWnDIQkRQx4YIxPi2Z0EiQHDz/view