Colorado LegiSource

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

Author: olls

  • Legislative Ethics and Criminal Code Violations

    Editor’s note: This is the third in a series of articles based on the ethics issues included in the online ethics tutorial available through a link at the bottom of the General Assembly website. For earlier articles, see “Legislative Ethics – Post-legislative Employment” and “Legislative Ethics – Legislative Immunity”.

    Bribery: §18-8-302, C.R.S.
    A legislator commits the crime of bribery if he or she solicits, accepts, or agrees to accept a pecuniary benefit based on an agreement or understanding that the legislator’s vote, opinion, judgment, exercise of discretion, or other action as a legislator will be influenced by receiving the pecuniary benefit. A “pecuniary benefit” could be money, property, commercial interests, or anything else that primarily results in economic gain to the legislator. A person can be guilty of bribery even if he or she has been elected or appointed but has not yet been sworn in to office. The crime of bribery is a class 3 felony, punishable by a minimum of four years and a maximum of 12 years in prison, followed by a mandatory parole period of three years, or by a fine of at least $3,000 but not more than $750,000, or by both the fine and imprisonment.

    Seems pretty straight forward. Get out your pencils—let’s take a quiz!

    Hypothetical #1. It’s the first day of the session and you’re on your way to the House Chambers to be sworn in. Just before you leave your office, you get a call from one of your new constituents. This person is very concerned about his mother. She’s in the country illegally, and she has a serious health condition. If she has to return to her native country, she will not be able to receive the treatment she needs. You try to explain that immigration law is a federal issue, and, as a state legislator, there’s really nothing you can do. But your constituent is convinced that introducing a bill will send a message to Congress. Your constituent also mentions that he has driven past your house a couple of times and noticed that your driveway is in very bad condition. Your constituent actually has a driveway resurfacing company, and he would be happy to give you a free resurfacing, but he really needs your help. You tell him that you won’t introduce a bill, but you will introduce a memorial to Congress to express the General Assembly’s opinion that there should be an exception made in the immigration laws for persons in immediate need of significant medical treatment. Then you make an appointment for next Saturday for your constituent to start resurfacing your driveway.

    Have you just committed the crime of bribery?

    a. NO. As a state lawmaker, you can’t change federal immigration law.

    b. NO. You haven’t been sworn in, so you weren’t a public servant when you agreed to introduce the memorial and accepted the free driveway resurfacing.

    c. YES. You agreed to introduce the memorial to Congress to help your constituent, and you’re accepting his offer of a free driveway resurfacing.

    d. NO. A memorial to Congress does not have the force and effect of law, so it is not included in the actions for which you can be bribed.

    The correct answer is c. To convict a public servant of the crime of bribery, a district attorney must prove that the person was a public servant and that he or she agreed to accept a pecuniary benefit on the basis that one or more of the person’s actions as a public servant would be influenced. You had been elected, so you fit the definition of a “public servant” even though you were not yet sworn in. You initially explained that you could not help your constituent, but after hearing the offer of a free driveway resurfacing, you agreed to introduce legislation to address your constituent’s concern. And you accepted the offer of a free driveway resurfacing by making the appointment. It appears that a district attorney would have sufficient evidence to prove each of the elements of the crime of bribery.

    Compensation for past official behavior: §18-8-303, C.R.S.
    A legislator commits the crime of accepting compensation for past official behavior if the legislator solicits, accepts, or agrees to accept any pecuniary benefit as compensation for having given a decision, opinion, recommendation, or vote favorable to another person, while the legislator was a member of the General Assembly, or for having otherwise exercised discretion in favor of the other person, while the legislator was a member of the General Assembly, regardless of whether the legislator violated a duty in so doing. In essence, this statute prohibits payment of a bribe after the fact. A “pecuniary benefit” could be money, property, commercial interests, or anything else that primarily results in economic gain to the legislator. The crime of accepting compensation for past official behavior is a class 6 felony punishable by a minimum of one year and a maximum of 18 months in prison, followed by a mandatory parole period of one year, or by a fine of at least $1,000 but not more than $100,000, or by both the fine and imprisonment.

    Let’s see how this one might play out.

    Hypothetical #2. You have served in the Colorado State Senate for the last eight years. During that time, you have sponsored several pieces of legislation, but the one you’re most proud of is the bill to establish a state-funded community outreach program for youth involved in gangs. Since the bill passed six years ago, this program has been repeatedly recognized for successfully directing several young men and women away from gangs and into useful community service. Last week, you received a call from the president of the board of directors for the program. The executive director of the program has accepted a new position and is moving to Chicago. Because you were the bill sponsor, the board of directors is offering you the job. You don’t have any experience in operating this type of a program, but the pay is significantly more than you make as a legislator. You tell him you’ll think about it.

    If you take this job, will you commit the crime of accepting compensation for past official behavior?

    a. YES. Your vote for the bill created the program. As such, it was a vote that was favorable to the president and to the board of directors, and they are now offering to compensate you for it.

    b. NO. Even though you will receive a pecuniary benefit – a job – as a result of legislation that you introduced and passed, voting for the bill did not directly benefit either the president or the board of directors; their offer of a job is not compensation for a vote in their favor.

    c. NO. It’s a good program that benefits many people. You have the best understanding of the legislature’s intent in creating the program, so you are the best person to operate it.

    d. YES. If you accept the job, you will receive compensation for having introduced and voted for the legislation.

    The correct answer is b. Creating the program conferred a benefit on the community or on the public as a whole. It does not constitute a vote that is favorable to an individual or specific group of individuals. Because the vote for the bill was not a vote in favor of the individuals offering you the job, accepting the job would not constitute accepting compensation for past official behavior.

    Misuse of official information: §18-8-402, C.R.S.
    A legislator may be held criminally liable for misuse of official information if the legislator takes certain actions in contemplation of official actions to be taken by the legislator or the General Assembly or takes certain actions based on information that is not available to the public but is known by the legislator. Specifically, a legislator may commit misuse of official information if he or she knows that some official action will be taken or the legislator has some piece of nonpublic information, and the legislator acquires a pecuniary interest in property, a transaction, or an enterprise that may be affected by the action or the information, or if the legislator speculates on the basis of the action or the information. The legislator may also be guilty of misuse of official information if he or she wants to grant another person a special pecuniary benefit and does so by aiding, advising, or encouraging the other person to acquire a pecuniary interest or to speculate based on the action or the information. Misuse of official information is a class 6 felony punishable by a minimum of one year and a maximum of 18 months in prison, followed by a mandatory parole period of one year, or by a fine of at least $1,000 but not more than $100,000, or by both the fine and imprisonment.

    This one is a bit confusing. Let’s take it for a test drive.

    Hypothetical #3. You are sitting in the House Education Committee listening to testimony on a bill to allow CSU-Pueblo to open a new satellite campus in La Junta. Your ears perk up when the witnesses from CSU-Pueblo start describing exactly where the new campus will be located. It’s in the neighborhood you live in. You happen to know that the Lucky Licks Ice Cream Shop is located just across the street from where the new campus will be built and that Lucky Licks has been for sale for about two years. The committee passes the bill to the Committee of the Whole; you are the only committee member to vote against the bill. That evening, you make an offer on the Lucky Licks property, which is immediately accepted. You close on the property a month later. Two weeks after your closing, the General Assembly passes this very popular bill by a wide margin. You voted against the bill each time it came up for a vote in the House.

    Have you committed the crime of misuse of official information?

    a. NO. Authorization of the new campus and the location of the new campus was public information; anyone could have been smart enough to buy the ice cream shop.

    b. NO. The campus won’t open for at least a year and there’s no guarantee that opening the campus will lead to higher profits at the ice cream shop.

    c. YES. In contemplation of the legislature’s action to authorize the new campus, you bought a business that is likely to be more profitable because of that new campus.

    d. NO. You never voted in favor of the bill, so you didn’t act in contemplation of any official action that you took.

    The correct answer is c. In contemplation of the General Assembly’s action in authorizing CSU-Pueblo to open the new campus in La Junta, you acquired a pecuniary interest in property across the street from the new campus. This property – an ice cream shop – is likely to be affected by the General Assembly’s action in approving the bill because of the property’s location next to the new campus. Based on these facts, it appears that a district attorney could prove all of the elements of the crime of misuse of official information.

    Want to learn more about legislative ethics? Take the Legislative Ethics Tutorial.

  • Throwback Thursday: Looking Back at the Twenty-second General Assembly

    By Patti Dahlberg

    If we stepped back one hundred years and fifty legislative sessions, what would we find?

    Well to start with, when the dust cleared from the 1918 elections, the Democrats retained control of the Senate with 21 Democrats to 14 Republicans, but lost control of the House of Representatives with 41 Republicans to 24 Democrats, almost a complete flip in numbers from 1917. This House flip in Colorado mirrored political power flips in the U.S. Senate and House of Representatives, as well as in many state assemblies across the country.

    Coloradans passed three initiatives in November of 1918. The Bone dry prohibition law initiative passed 63% to 36% and made Colorado one of the driest states in the country. The ballot measure Placing state civil service in the Constitution passed 64% to 35% and moved civil service laws from the statutes into the constitution. The Relief of the adult blind measure passed 93% to 6% and provided for the creation of a commission to consider applications for financial assistance by persons who were blind. In addition, two referendums passed. Limiting the time for introduction of legislative bills passed 77% to 22% and required all bills, except the general appropriations bill, to be introduced within the first 15, instead of 25, days of the legislative session. Concerning the publication of proposed constitutional amendments and initiated and referred laws passed 88% to 11% and required ballot proposals to be published at least twice and in two different publications in each county.

    The Twenty-second General Assembly

    The General Assembly convened at “12 o’clock, noon” on Wednesday, January 1, 1919. The Colorado Constitution required a January 1 convening date at the time. In the House of Representatives, Mr. M.D. Bowen, the Chief Clerk of the House of the twenty-first General Assembly, called the House to order and read the official announcement and designation of members elected to the House. Representative Allyn Cole of Prowers and Baca Counties was elected to preside as Speaker of the House. (Photo from Presidents and Speakers of the Colorado General Assembly, Denver, Colorado, 2016 Edition.) The Senate was called to order by Lieutenant Governor James A. Pulliam, who presided as Senate President. Before 1974, the constitution required the state’s Lieutenant Governor to serve as President of the Senate, voting only to break a tie. Speeches were made, opening day committees were formed, the governor was notified. The House went on to start their work for the session, introducing “House Concurrent Resolution No. 1, by Messrs. Wilcox and Colgate” to ratify the proposed amendment to the U.S. Constitution “prohibiting the manufacture, sale or transportation of intoxicating liquors…”, and ending the convening day by remembering its deceased members from the Twenty-first General Assembly, Messrs. Baar, DuPraw, McDonald, and Murphy.

    On the 14th legislative day, Tuesday, January 14, 1919, the newly elected Governor of Colorado, the honorable Oliver H. Shoup, presented his inaugural address to a joint session of the House of Representatives and the Senate to direct their attention to matters he considered important and to assure them of his cooperation on addressing these matters. High on his list was determining how best to honor the sacrifice of and provide for almost 25,000 Colorado solders. Governor Shoup recommended that the legislature provide for returning soldiers to attend Colorado’s state institutions of learning tuition-free and for free medical treatment for wounded soldiers. The legislature responded by funding an educational loan fund for soldiers and appropriating additional funding to the University of Colorado to offer additional classes for those who served in the Armed Services or in the Red Cross. The General Assembly also set aside money for a memorial for Colorado’s soldiers who served in the First World War, and on the last day of the session the legislature designated November 11 as “Liberty Day”.

    Governor Shoup recommended that the legislature implement a budget system to guide the state’s expenditures and eliminate over-appropriation. He encouraged the legislature to invest in building good roads and to work with federal programs for highway construction and funding. He asked that the legislature simplify the workmen’s compensation process and make the prompt payment of just claims mandatory. He encouraged additional funding for education and other state institutions and called for the creation of a state institution for the treatment of the acutely insane. The legislature created the Office of the Budget and Efficiency Commissioner, which also required state agencies to submit budgets to the governor, and passed two bills to help fund highway construction: a Special tax created for the building of highways and a one cent per gallon tax.  In addition, the legislature passed the “Workmen’s Compensation Act of Colorado” and established the Psychopathic Hospital and Laboratory of the University of Colorado in Denver.

    The Governor emphasized the importance of fostering, protecting, and stimulating the various industrial  interests of Colorado with improved transportation options, equitable freight rates, and the fair inspection and grading of products. The General Assembly enacted laws regarding livestock branding, state ore testing, and grain, produce, and mine inspections. Other general recommendations from the Governor included establishing a Civil Service Commission to enforce the recently adopted constitutional amendments regarding civil service laws, enacting a blue-sky law to protect consumers against the sale of worthless stocks, and providing for the codification and publication of the state’s statutes. The legislature established the Civil Service and Blind Benefit commissions and appropriated money for these entities. Bills to penalize the false representation of stocks for sale and creating a commission for the compilation of statutes to revise, consolidate, codify, edit, and prepare for publication the general laws of the State of Colorado were enacted.

    In closing, Governor Shoup said, “We are entering upon a new era of National and State affairs. Let us not lightly abandon that which experience has proven to be good, nor stubbornly refuse to accept that which is new, simply because it is new. Let us at all times and in all things, give to the people of Colorado, whose servants we are, the best that is in us, unswayed by any consideration other than the public welfare. To do more is beyond us, to do less is beneath us.”

    In all, the members of the General Assembly introduced 593 House bills and 436 Senate bills; passed around 210 bills; and adjourned sine die on April 7, 1919, at 6 o’clock.

    So what was the climate in 1919?

    Heading into 1919, Colorado and the rest of the country were relieved to see an end to World War I (WWI) but would soon be facing economic and public health issues arising out of the war and the Spanish Flu pandemic. WWI was the first global conflict using modern warfare and consequently was one of the deadliest conflicts in history. An estimated seven million civilians and 10 million military personnel died from war-related causes — bombings, poison gas attacks, combat, accidents, disease, or deaths as prisoners of war. Other estimates put the combined total of casualties closer to 40 million. After four years of fighting in Europe, the combatants declared an armistice on November 11, 1918. The large number of American troops sent overseas (more than two million men in combat or combat services) and the wait for a seat on a ship back meant that most soldiers did not return home until well into 1919, long after the celebrations ended. The ill and wounded returned with slow-healing wounds, amputated limbs, and blindness or with war-caused health problems such as gas-related tuberculosis or the newly coined “shell shock” (now termed post-traumatic stress disorder). As if that were not enough, the 1918-19 Spanish Flu pandemic infected 500 million people worldwide and left an estimated 20 to 50 million people dead. Just over 1,000 Colorado military personnel were killed or died in service during WWI, but almost 8,000 flu deaths were recorded in Colorado during a 10-month period.

    Many of the able-bodied veterans returning home found re-adjusting to civilian life difficult. There was no GI Bill or other financial or educational benefits for veterans at that time; many found high unemployment, business bankruptcies, and falling wages. The high demand for the U.S. agricultural products that “fed the world” during the war years dropped, slowing down the economy even more. The fighting had stopped, but the post-war world now seemed out of control. In Europe, old empires were crumbling; the Russian Bolshevik Revolution ushered in communism, which threatened to overrun Europe. There were workers’ risings in Berlin, Bavaria, and Bremen. Factory seizures, strikes, and various revolutions took hold and then waned in Budapest, Barcelona, Paris, Lyons, Brussels, and Glasgow, across the ocean to Canada in Nova Scotia, Toronto, Winnipeg, Edmonton, and even in the United States in Seattle, Boston, and Cleveland. These localized disturbances were soon followed by national steel and coal strikes.

    How does this compare to today?

    Luckily, we are not recovering from a devastating world war or flu pandemic. Based on opening day remarks by legislative leadership, however, the hot topics continue to be funding for transportation and education improvements. Other issues include addressing teacher shortages, opioid addiction, health care costs and coverage, inequities in the criminal justice system, and improving the quality of life in Colorado through economic development, job security, affordable housing, increasing renewable energy use, protecting water and air quality, and preserving our natural resources. The times have changed, but many of the issues remain much the same.

    Sources:

    https://www.theworldremembers.org/countries/united-states-of-america/the-united-states-and-ww1

    https://www.smithsonianmag.com/history/the-shock-of-war-55376701/

    http://lawcollections.colorado.edu/colorado-house-and-senate-journals/islandora/object/journals%3A89265#page/1/mode/1up

    https://www.codot.gov/programs/environmental/archaeology-and-history/highways-to-the-sky/ch5.pdf

  • The Title 12 Recodification Bill is Coming!

    By Thomas Morris
    Back in 2016, the General Assembly enacted Senate Bill 16-163, which directed the Office of Legislative Legal Services (OLLS) to conduct a study regarding an “organizational recodification of Title 12 of the Colorado Revised Statutes.” As described in the legislative declaration in the act, the rationale for the recodification is that Title 12 (which regulates professions and occupations):

    Lacks a coherent structure among its articles . . . ; [l]acks a true “common provisions” article resulting in the recurrence of identical or nearly identical provisions throughout the title; and . . . [i]ncludes numerous articles that do not strictly relate to the regulation of a profession or occupation and that could be more appropriately codified elsewhere in the Colorado Revised Statutes . . . .

    As directed by Senate Bill 16-163, from the summer of 2016 to the fall of 2018, the OLLS conducted extensive stakeholder outreach and held 18 meetings with stakeholders. During these meetings, OLLS staff and stakeholders reviewed proposals to:

    • Relocate laws into and out of Title 12; and
    • Reorganize Title 12 through the creation of common provisions and the revision of laws regulating professions and occupations (practice acts) to accommodate the common provisions.

    In 2017 and 2018, the Committee on Legal Services (COLS), which has overseen the recodification project, sponsored and the General Assembly enacted two dozen bills to relocate 36 articles and parts from Title 12 (and four provisions from Title 24) to their more appropriate titles in the Colorado Revised Statutes, including a newly created Title 44 for activities under the regulatory authority of the Department of Revenue.

    As a result of these efforts, Title 12 currently contains only laws administered by the division of real estate, the division of professions and occupations (DPO), or the division of conservation within the department of regulatory agencies. The COLS has agreed to sponsor the final result of all this preparatory work—a bill to recodify all of Title 12.

    The bill recodifies Title 12, as contemplated by Senate Bill 16-163, by:

    • Reorganizing and renumbering articles and parts within the title;
    • Relocating into Title 12:
      • Current statutes in article 34 of title 24 relating to the creation, powers, and duties of the DPO in administering the practice acts; and
      • A practice act regarding passenger tramways from Title 25;
    • Creating common provisions that are generally applicable to all practice acts administered by the DPO, except as otherwise specified, and modifying the various practice acts to eliminate redundancies with the common provisions; and
    • Eliminating provisions in Title 12 that are archaic or obsolete.

    In keeping with the guidelines established by Senate Bill 16-163 to cause an “organizational” recodification rather than a substantive recodification, the bill’s title is:

    Concerning an organizational recodification of title 12 of the Colorado Revised Statutes, and, in connection therewith, limiting substantive changes to those that conform similar provisions to achieve uniformity, eliminate redundancy, or allow for the consolidation of common provisions or that eliminate provisions that are archaic or obsolete.


    At 1,762 bill pages, the recodified Title 12 is plenty big. But the conforming amendments necessitated by the bill add about another 160 pages to the bill, and the bill also includes, as an addendum, comparative tables that show how all sections of the Colorado Revised Statutes that are in the bill have been relocated or repealed. All in all, the bill exceeds 2,000 pages. The bill has an October 1, 2019, effective date to give affected state agencies time to make necessary adjustments to their rules and forms.

    Because Title 12 in its entirety is repealed and reenacted, all of the existing sections of law in Title 12 have new section numbers. Also, because the Title 12 bill has an October 1, 2019, effective date, when it takes effect it will overwrite any bills enacted during the 2019 session that amend the existing Title 12 and have an earlier effective date. Therefore, each bill enacted during the 2019 session that amends an existing provision in Title 12, or that proposes to add a new provision to Title 12, will need to include a conforming amendment that amends the applicable updated section of Title 12 to preserve the policy changes contained in the non-recodification bill. This means the OLLS staff will likely be bringing to bill sponsors many amendments related to the Title 12 recodification.

    Some OLLS staff have taken to referring to the bill as “MOAB”—the mother of all bills. MOAB will soon be filed for introduction, so check your bill calendars. The Title 12 recodification bill is coming!

    Editor’s note: The Title 12 recodification bill has been introduced as House Bill 19-1172.

  • Happy Birthday House of Burgesses

    by Jery Payne

    The year was 1619. Although the colony of Virginia had yet to produce much in the way of profit, the years of starvation were at last over. The Virginia Company, who owned the colony because of a patent granted by King James I, had made a decision. The company decided that the necessity for martial law had passed, so it sent a new governor, George Yeardley, with instructions:

    And that they might have a hande in the governinge of themselves, yt was graunted that a generall Assemblie shoulde be helde yearly once, whereat were to be present the Govr and Counsell wth two Burgesses from each Plantation, freely to be elected by the Inhabitants thereof, this Assemblie to have power to make and ordaine whatsoever lawes and orders should by them be thought good and proffitable …

    This was actually Virginia’s third form of government, and historians have claimed that this grant was less motivated by a desire to advance the cause of representative government than by a desire to find a form of government that actually worked.

    Four hundred years ago, these instructions led to the first elected legislature meeting in the new world. Its first law required tobacco to be sold for at least three shillings per pound. They passed laws concerning such things as contracts, drunkenness, and gambling. They also sat as a court, where they sentenced a man to four days with his ear nailed to a pillory. They finished their work in six days.

    Small seeds grow mighty trees. Patrick Henry, Thomas Jefferson, and George Washington all served in the Virginia House of Burgesses.

    To be sure, the new world’s first legislature didn’t always advance freedom. During its first century, its laws transformed indentured servitude to slavery. Before that, the colony had followed the biblical rule that a servant was free after seven years. But for people of African descent, a series of laws evolved this into the chattel slavery that led to the Civil War.

    And some of their campaign practices would shock modern sensibilities. At a time when a day’s travel was about 30 miles, voting was an all-day affair. A person would come off a dusty road parched and tired. So the candidates would offer the voter a few drinks, such as rum, beer, or cider. This was known as “treating.”

    In his first election, George Washington refused to treat the voters; he received 40 out of 541 votes. In his second election, his campaign bought 160 gallons of libations for the voters. He won that election.

    Yet, for all its failings, the House of Burgesses inspired other colonial legislatures and made the colonists used to ruling themselves. Each colony eventually followed Virginia’s example and established a legislature. Self-government became a tradition they would not give up lightly. When the British Parliament levied taxes on the colonists, their protests and eventual rebellion were embodied in the cry “No taxation without representation!”

    The 1765 Stamp Act taxed the colonists without their leave. It enraged many of the colonists and led to months of protests. On May 29, Patrick Henry introduced a resolution in the House of Burgesses declaring, “Only colonial assemblies had the right to impose taxes on their constituents and that right could not be assigned to any other body.” This direct challenge to King and Parliament raised questions of his loyalty to the mother country.

    The next day, Henry gave his first speech in the House of Burgesses defending his resolution. Getting to George III, he said, “Caesar had his Brutus, Charles the First his Cromwell and George the Third …” Cries of “Treason!” interrupted his speech. Henry had uttered the names of dead rulers and the authors of their deaths in the same breath as Britain’s King, George III. Henry paused until the uproar died down, and then, he calmly finished his sentence: “…may profit by their example. If this be treason, make the most of it.” Trolling is nothing new.

    After months of protest, and an appeal by Benjamin Franklin before the British House of Commons, Parliament voted to repeal the Stamp Act in March 1766. But the King and Parliament kept levying taxes, so the colonies eventually rebelled. They wanted to be governed, not by Parliament, but by their own legislatures.

    Four hundred years ago, the first general assembly was born in the new world, and the institution of the state legislature was born.

    Happy Birthday!

  • Freedom of Speech for the New Legislator

    by Esther van Mourik and Pierce Lively

    It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” – Supreme Court Justice Hugo Black

    He has the backbone of a chocolate éclair.” – President Theodore Roosevelt on President William McKinley.

    You’ve just been sworn in to serve as a legislative member of the Colorado General Assembly[1] and you are now a public official. Congratulations! If you would like to know your rights as a legislator when you’re being criticized by the public, when you’re making speeches, or when you’re being threatened, read on!

    It is a foundational principle that the success of a democracy is built on the back of free political discussion. This discussion is a fundamental right protected by the First Amendment of the United States Constitution and article II, section 10 of the Colorado Constitution. But freedom of speech is not absolute. For example, it does not protect a person who shouts “fire!” in a crowded theater and causes a panic. Over the years the judiciary has justified regulating speech when the restriction outweighs the value of the expression. So, where is the line drawn? In particular, when is speech directed toward, or made by, a legislator protected and when is it not?

    Speech directed toward a public official

    Let’s say that a critic has publicly said you are “ripping off taxpayers” by sponsoring a tax credit for businesses. Do you have a complaint against that critic for defamation? Probably not.

    Defamation is a catch-all term for civil, not criminal, damage claims stemming from false statements that hurt someone’s reputation.[2] Defamation laws are an important recourse for those who are harmed by false statements. However, defamation laws are in direct conflict with the constitutional right to free speech, and consequently, courts look at punishing that speech very carefully. This conflict is particularly acute in the case of public officials, such as legislators, because robust political debates and discussions are fundamental to our democratic system and should not be chilled.

    In New York Times v. Sullivan, the United States Supreme Court addressed this conflict by holding that the First Amendment’s right to free speech prohibits a “public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

    What does this mean for public officials, including legislators, in Colorado? A public official can only recover damages for a statement if he or she can prove that (1) a person published or otherwise communicated the statement to a third party, (2) the statement caused the public official actual damage, and (3) that when the person made the statement, he or she either knew it was false or had a reckless disregard as to whether it was false. This “actual malice” standard imposes a high burden on public officials in a defamation case.

    So, when a critic has publicly said you are “ripping off taxpayers” because you sponsored a tax credit for businesses, this may hurt your reputation, but it is probably not defamation. The critic is entitled to his or her opinion, and opinions are hard to prove true or false.

    Speech made by a legislator

    An “unrestricted debate of public issues” requires protecting not only a public official’s critics, but also protecting the public official. As regular readers of LegiSource will already know, this protection is achieved through “legislative immunity.”[3]

    Let’s say you make a statement during legislative debate that offends someone. Is your speech protected? Yes. The Colorado Constitution includes protections to ensure that you can do your job as a public official without interference or intimidation.

    Under Article V, section 16 of the Colorado Constitution, legislators are immune from civil lawsuits and state criminal prosecution for actions that fall within the “sphere of legitimate legislative activity.”[4] Although Colorado courts have not defined the phrase “sphere of legitimate legislative activity,” in Gravel v. United States, the United States Supreme Court held that activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House” are within the sphere.

    In general, these activities include conducting hearings, preparing and authorizing the publication of reports, delivering floor speeches, and voting but do not include meeting with or influencing executive branch or local government officials or political activities related to campaigning.

    When a constituent is offended by something you said during legislative debate about a particular bill, your speech is protected, and you are immune from any liability related to that speech.

    When speech turns criminal

    Legislative immunity protects legislators and the high burden in defamation cases protects critics of the government, but no one is protected while threatening others. Actions that constitute criminally threatening behavior include:

    • Attempting to influence legislators and other public servants through “deceit or by threat of violence or economic reprisal”;[5]
    • Threatening or using physical action to place another “in fear of imminent serious bodily injury”;[6]
    • A continuous course of conduct where one follows, approaches, contacts, places another under surveillance, or communicates with someone in a manner that causes that person to suffer serious emotional distress;[7] and
    • Harassment. [8]

    If you feel threatened in any way while in the capitol, call state patrol (303-866-3660). If you feel threatened outside of the capitol, call local law enforcement. If you think the person threatening you away from the capitol may come to the capitol, please call state patrol.

    Final thoughts

    As you embark on your new careers as members of the General Assembly, it’s important to remember that open and robust discussion of public issues is a fundamental part of our democracy. Our laws strive to protect discussion both by critics of the government and the government itself. Critics of the government are protected by requiring public officials to clear a high bar before they succeed in defamation cases. Legislative immunity protects members of the government in relation to statements they make within “the sphere of legitimate legislative activity.” But expression that improperly influences, threatens, or harasses a person is illegal and unprotected. If you have any further questions about any of these issues, please contact the Office of Legislative Legal Services.

     

    [1] Or maybe you’re already a legislator and you just want a refresher!

    [2] If defamation is written, it is libel, and if it is spoken, it is slander.

    [3] See Legislative Ethics – Legislative Immunity and A Look at the Limits of Legislative Immunity.

    [4] For an in-depth discussion of how this doctrine applies to subpoenas, see To Testify or Not to Testify: Responding to a Subpoena.

    [5] Section 18-8-306, C.R.S.

    [6] Section 18-3-206, C.R.S.

    [7] Section 18-3-602, C.R.S.

    [8] Section 18-9-111, C.R.S.

  • The Office of Legislative Legal Services: More Than Just Bill and Amendment Drafting

    by Sharon Eubanks

    With the 2019 legislative session under way, legislators have already been interacting with the staff of the Office of Legislative Legal Services for their bill and amendment requests.  But the Legislative Legal Services staff, comprised of attorneys and other professional staff, provides a variety of written materials and services to legislators in addition to their bill and amendment drafting needs.  We encourage legislators to learn more about and make full use of the products and services we can provide.  Please visit our web page at https://leg.colorado.gov/agencies/office-of-legislative-legal-services.

    Legislative Legal Services is the General Assembly’s nonpartisan legal staff agency. As legislative lawyers, we maintain an attorney-client relationship with the General Assembly, as an institution, and not with each legislator. Therefore, we are obligated to serve the best interests of the institutional client, the General Assembly, as distinguished from the individual interests of any legislator. However, when working individually with legislators, we are statutorily bound to maintain the confidentiality of all bill and amendment requests before introduction, and we are ethically bound to maintain the confidentiality of the communications we have with each legislator, as a constituent of the institution.

    In addition to our primary function of drafting bills, resolutions, and amendments, the Legislative Legal Services staff, upon request, can provide legislators with written materials to help them understand Colorado law and what other states are doing to address various issues and to help them explain their bills. Due to time constraints created by bill and amendment drafting demands, which are our first priority during the legislative session, our staff may not always be able to respond immediately to every legislator’s request. But we do our best to provide the requested materials as soon as practicable, time permitting, and on a first-come, first-served basis. Examples of ancillary materials available upon request include:

    • More-detailed, written explanations of bills;
    • Summaries of changes made to a bill in committee, in the first house, or in the second house;
    • Tables comparing bill provisions;
    • Explanations of state or federal statutes;
    • Summaries of case law relevant to a bill;
    • Summaries of case law interpreting a particular statute or issue;
    • Legislative histories of issues or bills;
    • Legislative histories of constitutional or statutory provisions;
    • Comparisons of Colorado law with the law of other states on particular issues; and
    • Lists of all Colorado statutes addressing an issue.

    Our office also provides written legal opinions, including written legal opinions on issues relating to pending legislation. We hold legal opinion requests in strictest confidence. We will not release a written memorandum to other persons without the permission of the legislator who requested it. And we will give the same answer if another legislator asks us the same question, which will result in identical legal opinions for different legislators.

    There are some limitations on the materials and services we can provide to legislators due to our role as nonpartisan legislative staff. Examples of the documents and tasks that Legislative Legal Services staff cannot provide include:

    • Voting records on an issue or bill;
    • Talking points advocating for or opposing a policy position;
    • Conveying messages that encourage a legislator to vote for a bill or discourage a legislator from voting for a bill;
    • Soliciting legislators as joint prime sponsors, cosponsors, or second house sponsors;
    • Violating confidentiality, e.g., telling a legislator about amendments prepared for other legislators to his or her bill, telling a legislator what another legislator said or told others about the legislator’s bill, or telling a legislator what legal advice our office gave another legislator;
    • Assisting a legislator in counting votes; and
    • Advocating for passage or defeat of legislation on policy or any other grounds.

    These lists illustrate the materials or services we can and cannot provide, but they are not exhaustive. If a legislator has a request for materials or assistance, please ask us. If it’s something we can provide, we will do so.

    The Legislative Legal Services staff is ready to provide the services and support to help the members of the Seventy-second General Assembly have a productive and successful legislative session in 2019. We encourage legislators to utilize the Legislative Legal Services staff for all their legislative needs, not just for bill and amendment drafting.

  • Does Colorado Have a “Stand Your Ground” Law?

    by Richard Sweetman

    [Editor’s note: We originally posted this article on October 3, 2013. Since that time, the Florida law has been amended. This reposting is an update to the original article.]

    No, Colorado does not have a “Stand Your Ground” law. We have a “Make My Day” law.

    Wait; I’m serious. Let me explain.

    “Stand Your Ground” Laws

    A “Stand Your Ground” law is similar to a standard self-defense statute, in that it allows a person to use deadly force in self-defense when the person has a reasonable belief that deadly force is necessary to prevent death or serious bodily harm. However, a “Stand Your Ground” law expands upon the traditional self-defense doctrine in one or more ways. For example, a “Stand Your Ground” law may:

    • Identify locations where a person may use deadly force under certain conditions, including dwellings, vehicles, businesses, and other public places where the person is legally present;
    • State explicitly that a person has “no duty to retreat” before resorting to the use of deadly force in self-defense;
    • Establish a presumption of reasonableness in favor of a person who uses deadly force under certain conditions;
    • Establish civil immunity for a person who uses deadly force under certain conditions; or
    • Allow a person to use deadly force to stop the commission of certain felonies.

    Florida’s “Stand Your Ground” law (Fla. Stat. 776.013), which has attracted much attention in the past, reads:

                (1) A person who is in a dwelling or residence in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use or threaten to use: (. . .)

                (b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

    The Florida law also creates the following presumption:

                (2) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:

                (a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

                (b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

    This presumption eliminates the burden of proof for a person who used deadly force—that is, the burden to prove that he or she had a “reasonable fear of imminent peril of death or great bodily harm.” The presumption shifts the burden to the prosecution, who must prove otherwise.

    Florida adopted its “Stand Your Ground” law in 2005 and amended it in 2014 and 2017. Since then, according to the National Conference of State Legislatures, the number of states with similar laws has grown to 22.

    Colorado’s “Make My Day” Law

    Colorado adopted its “Make My Day” law in 1985. At that time, the phrase “make my day” had been popularized by the 1983 Clint Eastwood film Sudden Impact and then revived by President Reagan in his 1985 threat to veto any tax increase legislation sent to him by the U.S. Congress. The law is codified at section 18-1-704.5, C.R.S.

    Colorado’s “Make My Day” law is similar to a “Stand Your Ground” law, in that both laws may be seen as expansions upon the old common law “castle doctrine.” Under this doctrine, a person has no “duty to retreat” before resorting to the use of deadly force when faced with imminent peril in his or her home. Compared to a “Stand Your Ground” law, however, Colorado’s “Make My Day” law is a relatively limited expansion.

    The very idea of a statutory “castle doctrine” in Colorado is a little strange because the castle doctrine, by its own terms, is an exception to another doctrine—the duty to retreat. And except in certain specific circumstances, there has never been a duty to retreat in Colorado. (See People v. Toler, 9 P.3d 341, 348 (Colo. 2000), citing Boykin v. People, 45 P. 419 (Colo. 1896).) It is therefore no surprise that Colorado’s “Make My Day” law does not mention a duty to retreat; it has never been necessary for the General Assembly to state explicitly that no such duty exists in Colorado.

    The “Make My Day” law is like the “castle doctrine” because it is limited to dwellings. Rather than stating that there is no duty to retreat in a dwelling, however, Colorado’s law lowers the standard for justifying the use of deadly force against an intruder in a dwelling.

    Under Colorado’s law, any occupant of a dwelling may use deadly force against an intruder when the occupant reasonably believes the intruder (1) has committed or intends to commit a crime in the dwelling in addition to the uninvited entry and (2) might use any physical force, no matter how slight, against any occupant of the dwelling. This is a lower standard of justification than appears, for example, in Colorado’s historical self-defense statute, which is codified at section 18-1-704, C.R.S.

    Colorado also has longstanding statutes justifying the use of physical force in special relationships (18-1-703, C.R.S.), in defense of premises (18-1-705, C.R.S.), and in defense of property (18-1-706, C.R.S.).

    Perfectly Clear?

    So do you now understand the difference between a “Stand Your Ground” law and Colorado’s “Make My Day” law? Not entirely? Well, that’s okay. Frankly, the distinctions are not entirely clear—partly because 22 variations of the “Stand Your Ground” law now exist. But the table below, which contrasts Florida’s law with Colorado’s law, can help you remember the key differences. For more information about “Stand Your Ground” laws, visit the NCSL website.

  • Just Outside Our Doors – A Tribute to Colorado’s Pioneers and Pioneer Spirit

    by Patti Dahlberg

    At the corner of Colfax and Broadway stands the Pioneer Monument, a triangular fountain (except when the water is turned off during the winter or water rationing) paying tribute to those who crossed the Great Plains from the Missouri River to Denver along the Smoky Hill Trail. The trail, although more dangerous than other prairie trails, became the principal route for prospectors seeking fortune during the Colorado Gold Rush of 1859.

    The monument sits at the end of the Smoky Hill Trail. Designed by Frederick MacMonnies, it was dedicated in 1911 along with Civic Center Park. At its apex is a bronze figure of Kit Carson on a horse and around the rim of the fountain are three additional bronze figures – the hunter, the prospector, and the pioneer mother. The artist’s original design called for a Sioux warrior at the top of the fountain, but there was such an uproar about it that the artist switched the apex figure to the famous scout. The State Historical Society of Colorado added the plaque memorializing the Smoky Hill Trail in 1936.

    History of the Smoky Hill Trail

    As news of the gold found along the Cherry Creek quickly spread, would-be prospectors began traversing the country to seek their fortunes. There was, however, no official route connecting the East to Denver. The westernmost traveling point at that time was one of the jumping off points for the Oregon Trail in Salina (about 175 miles southwest of Leavenworth, Kansas). Prior to the Colorado gold rush, those traveling west would turn North or South to their destination in order to avoid the high peaks of the Rocky Mountains. To shorten the route from Kansas towns to Denver, frontiersmen began using an old Native American buffalo hunting trail along the Smoky Hill River.

    In 1859, an editorial in the Rocky Mountain News condemned the men and newspapers in the East encouraging people, in their rush for gold, to start out on the Smoky Hill Trail with inadequate provisions and the expectation of a good road and good camps with plenty of wood and water. Instead, there was no road, very little wood and, in many places, no water.

    Not deterred by the lack of food, scarce water supplies, frigid temperatures, and attacks by local tribes, thousands of prospectors, homesteaders, and soldiers traveled the Smoky Hill Trail between 1859 and 1865. Pioneers traveled in covered wagons or on foot pushing carts and wheelbarrows with many, especially that first year, barely surviving the trek. In Colorado, the largely unmarked trail separated into North and South paths, both ending in Denver. At one point there was a third path, called the “Middle Smoky Hill” which later became known as the “Starvation Trail” when the members of the Blue party were forced to resort to cannibalism to survive. Once the lone survivor (only because he was saved by the Arapaho) made his way to Denver with his tale, travel on the trail stopped while it was surveyed and more clearly marked to show the location of the trail and the best route for water.

    A couple of stage lines started up and failed before the Butterfield Overland Dispatch[1] was able to establish stagecoach transportation in 1865. The Dispatch built relay stations about every 12 miles along the 592-mile long route. Forts were built and soldiers posted along the stage route to protect the stations and travelers. By 1870, the Kansas Pacific Railroad pushed toward Denver, eliminating the need for stagecoaches.

    During the trail’s days of popularity, a number of famous and colorful characters traveled its path, including Generals Custer and Sheridan, Wild Bill Hickock, Wyatt Earp, John Wesley Hardin, and Buffalo Bill Cody. The trail also saw its share of bloodshed and death. Today, the old trail has several markers, old forts, and museums along its route from Kansas to Denver, ending in the Pioneer Monument in Denver.

     

    Sources:

    https://www.legendsofamerica.com/ks-smokyhillstrail/

    https://www.theclio.com/web/entry?id=23736

    https://www.hmdb.org/marker.asp?marker=4678

    http://www.waymarking.com/waymarks/WM8JH7_The_Pioneer_Monument_Denver_CO

    http://www.keystonegallery.com/area/history/bod.html

     

    [1] The word “Dispatch” is spelled “Despatch” on the plaque.

  • A Holiday Message

     

     Happy Holidays from the OLLS!

     

  • Got Bill Requests? Next Step is the “Bill Order”

    According to Joint Rule 24 (b)(1)(A), every legislator is allowed to submit five bill requests each session. These five bill requests are in addition to any appropriation, committee-approved, or sunset bills that a legislator may choose to carry and must be submitted by the bill request deadlines. But in order to keep these five bill requests, a legislator’s bill requests must also meet specific bill filing deadlines.

    Filing bills and introduction deadlines.

    Bill requests may be forfeited if the request does not meet specific filing deadlines.*  Prior to the start of each session, a legislator must decide which of his or her bill requests will be his or her “prefile” bill (to be filed and ready for introduction on the first day of session).  And, of course, which two bill requests will meet the other early bill introduction deadline. At some point at the start of session, a legislator must also decide which two bills will meet the regular bill deadlines.
    The filing deadline for prefile bills is normally five days prior to the start of session. This year, however, the prefile deadline is Friday, December 28, 2018. Each legislator must have one bill delivered to the front desk of the House or the Senate by this date or consider one of his or her bill requests as forfeited.*

    The House and Senate early and regular deadlines for filing bills for introduction vary by chamber:

    Bill Orders

    A legislator’s “bill order” is the order in which his or her bills are filed for introduction. Joint Rule 23 (a) says that a legislator should choose his or her prefile bill and two early bills from the three requests made by the early bill request deadlines. This year the early request deadlines were Monday, November 26, 2018, for returning General Assembly members and Monday, December 10, 2018, for those members newly elected this year. The rule also allows a legislator to choose a bill request submitted after this early request deadline to meet the early bill introduction deadlines if needed.

    A legislator’s early bill requests usually are filed as his or her early bills because these requests are submitted earlier and, therefore, are more likely to be further along in the drafting process than a bill request submitted later. But sometimes an early bill request may be more complicated than expected. In this case, the legislator may choose a relatively simple “regular” bill request (i.e., a request submitted after the early deadlines in November and December) to be one of his or her bills filed with the House or Senate in time to meet an “early” bill filing deadline, leaving the legislator with more time to work on the more complicated bill request.

    The Office of Legislative Legal Services (OLLS) encourages legislators to designate their prefile bill and other early bills (i.e., the bill order) as soon as possible in early December so that the OLLS can prioritize the drafting on these bills accordingly. If the OLLS does not have a legislator’s bill order on record, we will contact the legislator for this information and will continue contacting the legislator until the information is received.

    *  A legislator can ask for permission from the House or Senate Committee on Delayed Bills, whichever is appropriate, to submit additional bill requests or to waive a bill deadline to a different date.