Colorado LegiSource

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

Author: olls

  • Colorado Supreme Court Upholds New Sentences for Juvenile Offenders Serving Unconstitutional Mandatory Life Sentences Without the Possibility of Parole

    by Michael Dohr

    The Colorado Supreme Court recently had to decide whether Senate Bill 16-181, concerning the sentencing of persons convicted of class 1 felonies committed while the persons were juveniles, was unconstitutional because it violated the special legislation clause, Article 5, section 25 of the Colorado constitution. S.B. 16-181 is related to juvenile sentences that were determined to be unconstitutional based on two U.S. Supreme Court decisions.

    BACKGROUND

    In Colorado from July 1, 1990, to July 1, 2006, a juvenile convicted of a class 1 felony in a district court was sentenced to life in prison without the possibility of parole (LWOP). In 2012, the U.S. Supreme Court ruled that a mandatory LWOP sentence for a juvenile violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Then, in 2016, the U.S. Supreme Court ruled that its decision applied retroactively. Together, these decisions invalidated the Colorado LWOP sentences for approximately 50 individuals.

    That created a problem for the Colorado courts that had to resentence those individuals, because there was no statutory guidance for what type of sentence could be imposed. Ultimately, the Colorado Supreme Court was forced to decide: What sentence range would the legislature have adopted if it knew an LWOP sentence was unconstitutional? In People v. Tate, the Colorado Supreme Court implored the legislature to address the issue. In 2016, the General Assembly did so by passing S.B. 16-181.

    S.B. 16-181 essentially creates two different sentencing ranges for those individuals serving the unconstitutional LWOP sentences. For those serving a sentence for a conviction of felony murder[1], the range is 30 to 50 years and for those serving a sentence for a conviction of another class 1 felony it is a life sentence with the possibility of parole after 40 years.

    Curtis Brooks was sentenced in 1997 to an LWOP sentence after being convicted of felony murder. Brooks sought resentencing of his unconstitutional sentence under the new sentencing scheme created in S.B. 16-181, asking the court to sentence him within the 30-to- 50-year range. The prosecution objected arguing the 30-to-50-year range violated the constitutional prohibition on special legislation. Originally, the district court agreed with the prosecution that the provision was unconstitutional, but then reversed itself on reconsideration. Before resentencing occurred, the prosecution appealed to the Colorado Supreme Court on the special legislation question.

    ANALYSIS

    The prosecution premised its claim on the fact that the sentencing provision had two different provisions, one for those who committed felony murder and one for those who committed any other class 1 felony. They argued that the felony murder sentencing provision was special legislation because it created a special class apart from everyone else subject to an unconstitutional LWOP sentence.

    The special legislation clause was enacted, in part, to prevent legislation that applies to some classes but not others without a reasonable basis for distinguishing them. It was also intended to curb favoritism on the part of the General Assembly, prevent the state government from interfering with local affairs, and preclude the legislature from passing unnecessary laws to fit limited circumstances. To determine if a statute is special legislation, there is a two-part inquiry. First, is the classification adopted by the legislature a genuine class or is it logically and factually limited to a class of one and thus illusory? If the class is illusory, then it is prohibited special legislation. If not, then the question is whether the classification is reasonable.

    The Colorado Supreme Court considered whether the classification the legislature created for those convicted of felony murder was genuine or illusory. First, it was estimated that the class in this case currently applies to at least 16 of the approximately 50 persons who are serving the unconstitutional LWOP sentence. The Court found that the class being larger than one favored a finding that it was genuine. Second, the Court found that the class was not limited by time, also suggesting it was genuine. Although there are currently at least 16 individuals in the class, an individual in the future who is convicted of felony murder for a cold case committed between 1990 and 2006 would also be subject to the classification. So, it was possible the class could expand beyond 16. Finally, the court analyzed the legislation and found that the legislature did not tailor the legislation to accomplish a particular purpose. Instead, the legislature was responding to fill the gap left by the U.S. Supreme Court’s determination that an LWOP sentence is unconstitutional. The Colorado Supreme Court found that the classification was genuine.

    That led the Court to consider whether the classification was reasonable. To determine whether the classification is reasonable, a court must consider whether there is a reasonable relationship between the legislation’s legitimate stated purpose and the classification. The Court found it reasonable to treat those who committed felony murder different from those who committed a different class 1 felony in two contexts. The legislature’s plenary authority allows it to adopt more severe penalties for conduct with more grave conduct and vice versa, so the legislature reasonably decided to treat those convicted of felony murder differently from those convicted of a different class 1 felony. The court also found it was reasonable for the legislature to create a different sentencing scheme for those convicted between 1990 and 2006 rather than just applying the current scheme to those individuals since the gap was created by the U.S. Supreme Court decisions. It was reasonable to create a different scheme for those individuals, because the individuals had already served a decade or more in prison and thus were in a unique position compared to a person convicted today.

    With these findings, the Colorado Supreme Court upheld the juvenile sentencing provision adopted in S.B. 16-181 against claims it is special legislation.

     

    [1] A person commits felony murder by committing or attempting to commit arson, robbery, burglary, kidnapping, sexual assault, or escape and in the course or furtherance of the crime or while in immediate flight therefrom the death of another person is caused. §18-3-102, C.R.S.

  • OLLS Adopts New Policy for Handling Duplicate Bill Requests from Members

    by Richard Sweetman

    Duplicate bill requests occur every session, and the Office of Legislative Legal Services (OLLS) must handle each such scenario with diplomacy, tact, and confidentiality. Beginning with the 2019 session, the OLLS is taking a new approach to handle instances in which more than one legislator requests the same bill.

    If an OLLS staff member determines that two bill requests are identical, nearly identical, or partial duplicates, the assigned drafter will do the following:

    • First, determine whether the requests are identical, nearly identical, or partial duplicates or merely similar.
    • If the drafter determines the two bill requests are merely similar, the drafter will continue drafting both requests without divulging any information to the requesting legislators regarding the existence of the two bill requests.
    • If the bills are identical, nearly identical, or partial duplicates, the drafter will contact each requesting legislator and inform him or her that the OLLS believes his or her request may be a duplicate of another bill request that has been filed with the OLLS. In this conversation, the drafter may disclose whether the other requestor is from the Senate or the House of Representatives and whether the requestor is a member of the same party.
    • The drafter will ask each requesting legislator for permission to disclose his or her identity to the other legislator who requested the bill. Note that the drafter is seeking the same permission from both legislators, and one legislator might give permission for such disclosure while the other legislator might not. If neither legislator gives permission to contact the other legislator, and both legislators indicate that they wish to continue with their bill requests, the drafter will continue to work on both requests without divulging any more information to either legislator about the other legislator’s request.
    • If either legislator directs the drafter to disclose his or her identity to the other legislator, the drafter will do so. Once the disclosure is made, the drafter will leave it up to the legislators to determine how to resolve the duplicate bill situation. The drafter’s goal is to let the two legislators decide what they want to do without assuming the role of an intermediary.

    In resolving a duplicate-bill-request situation, legislators may want to join efforts as prime sponsors in each house, or they may want to become joint prime sponsors in the same house, or one may become a prime sponsor and the other a sponsor, or one of them may kill his or her request. In some cases, both legislators will proceed with their bills and let the issue work itself out through the process.

    Note that a drafter may need to modify the process in the case of a partial duplicate bill request. A partial duplicate occurs when one requested bill contains a duplicate portion of another requested bill. In this case, the drafter must not disclose the other contents of a bill that is only a partial duplicate. The bill sponsors may choose to work out which bill will contain the duplicate provision or choose to include it in both bills.

    Sometimes it is difficult to determine whether two bill requests are truly duplicates. When in doubt, the OLLS will err on the side of caution by identifying a potential duplicate situation to the legislators who requested the bills.

    If legislators have any questions about the new OLLS policy, they should contact the office and ask to speak to an attorney.

  • Happy Thanksgiving

    Happy Thanksgiving from the Office of Legislative Legal Services

     

  • Interim Committee Recommends Changes to the Legislative Workplace Harassment Policy and Joint Rules

    by Jerry Barry and Megan Waples

    Last spring, in approving the study topics for the 2018 interim, the Legislative Council approved an interim committee to evaluate the findings and recommendations from the 2018 Legislative Workplace Study  requested by the Executive Committee in December of 2017. Speaker of the House Crisanta Duran chaired the committee, and Senator Beth Martinez Humenik was the vice chair. The other persons appointed to the committee were Senator Bob Gardner, Senator Dominick Moreno, Representative Kim Ransom, and Representative Faith Winter. The committee met five times over the course of the 2018 interim.

    The primary charge of the Legislative Workplace Interim Study Committee (Study Committee) was to make recommendations to the Executive Committee of the Legislative Council (Executive Committee) regarding the legislative workplace. Specifically, the Study Committee considered changes to the workplace harassment policy set forth in Rule 38 of the Joint Rules of the Senate and House of Representatives, the General Assembly’s workplace harassment policies, and the legislative human resources staffing and structure and looked at ways to promote cultural change regarding harassment in the workplace. Through the five meetings, the Study Committee heard testimony from experts in human resources, workplace harassment, and workplace culture and developed recommendations on each of these issues. Some recommendations were approved unanimously. In other areas, the Study Committee included alternative recommendations for the Executive Committee to consider.

    The Study Committee unanimously recommended that an Office of Legislative Workplace Relations (new office), consisting of at least two full-time employees, be established in the Office of Legislative Legal Services. The Study Committee recommended that the new office have locations in both the State Capitol Building and in the Legislative Office Building at 1525 Sherman Street and that the offices have doors opening directly into a public hallway to help maintain the privacy of individuals entering the offices.

    The Study Committee also recommended that Joint Rule 38 be amended to require the new office to recommend to the Executive Committee for its adoption a new Workplace Harassment Policy. The Study Committee recommended that the new Workplace Harassment Policy include:

    • A new anonymous reporting tool, although one member objected to any anonymous complaints;
    • A requirement that employees of the new office receive complaints under the policy;
    • An informal complaint resolution process, with a goal of resolving informal complaints within 30 days after the parties agree to the informal process;
    • A formal complaint resolution process that includes different paths depending on who the complaint is against;
    • Provisions maintaining confidentiality for parties and witnesses; and
    • Measures to prevent retaliation against persons involved in an investigation.

    The members of the Study Committee proposed different structures for overseeing formal complaints against legislators and partisan staff. Some members recommended a joint committee composed of four legislators—one from each caucus—and three non-legislators. The non-legislative members would be appointed jointly by the leaders of each caucus and would have experience in human resources, victim advocacy, and employment law. Other members recommended establishing separate workplace harassment committees for each chamber consisting of three members from each caucus of the chamber. The committees would include only legislators and could solicit testimony from experts as needed.

    The Study Committee made recommendations to amend the Colorado Open Records Act to protect documents related to complaints under the policy and recommended changes to the Open Meetings Law to protect the deliberations of the new workplace harassment committee or committees.

    The Study Committee also recommended that the amended Joint Rule 38 direct the new office to develop a Workplace Expectations Policy, which would establish general expectations for a respectful workplace and address complaints related to those expectations. Complaints under this policy would be resolved through an informal complaint process similar to that included in the proposed new Workplace Harassment Policy.

    In addition to the new policies, the Study Committee recommended adoption of an interim policy, which would incorporate into the existing workplace policy all recommendations that could be added without making changes to Joint Rule 38. These changes include requiring contacts to alert the human resources administrator to any complaints, allowing the human resources administrator to consult on issues related to workplace harassment, strengthening the anti-retaliation provisions, and clarifying record-keeping obligations.

    The Study Committee adopted a report of its recommendations at its final meeting on October 11, 2018. The Executive Committee met on November 8, 2018, and unanimously adopted only the interim policy. The remaining recommendations, which require legislative action through resolutions or bills, will be submitted for consideration by the Executive Committee that consists of the new legislative leadership chosen by the caucuses after the 2018 election. The full report of the Study Committee, including the new interim policy, is available to the public on the Study Committee’s website.

  • Throwback Thursday: Colorado’s 1918 Election

    by Patti Dahlberg

    By November 1918, Europe had been at war for four years, the United States had been involved for a little over a year, and Colorado was benefiting from increased wartime demand for agricultural and mining goods. Coal production reached a new high of 12,500,000 tons, and new fields were plowed to produce more wheat. The state industriously mined molybdenum and tungsten, both needed to make high-grade steel armaments for the troops. The Climax mine in Lake and Summit counties was the nation’s greatest source of molybdenum.

    Although mining and wheat production dominated Colorado’s economy during the war years, some local manufacturing of steel—in Pueblo—and agricultural products such as sugar beets, alfalfa, livestock, and other grains had begun to take hold. Railroads provided access for Colorado products to markets across the country and even helped an emerging tourism industry. Still there was the war, and in spite of high mining and agricultural production, Colorado like the rest of the country, experienced rising food and fuel prices and supply limits on sugar and wheat. Across the state, Coloradans planted gardens to supplement food supply, with some towns turning playgrounds into gardens. Denver even created a city-owned coal company to try to curb rising coal prices.

    Photo courtesy of Denver Public Library Western History/Genealogy Dept.

    America’s involvement in World War I (WWI) officially began with its declaration of war on April 6, 1917. Coloradans stepped up through the purchase of Liberty Bonds to lend the U.S. government more than $150 million dollars to help finance the war and sent 42,000 of their citizens to serve in the military. Around 1,500 Coloradans volunteered for military service, and another 4,500 volunteer soldiers came from the recently federalized National Guard. But, as in the rest of the country, the volunteer numbers were not enough, and an additional 36,000 Coloradans were drafted to join the rest of the 2.3 million Americans drafted into military service. Colorado’s population had been just shy of 800,000 in the 1910 census.

    There was also the Spanish flu epidemic. The Denver Post first reported a death due to influenza on September 27, 1918. By early 1919, the flu epidemic had killed more than 7,700 people in our state, compared to 1,000 to 1,100 Coloradans who were killed in the war. Most likely, the disease originated in crowded military bases in the United States or France in early 1918. Because of the war, any reports of healthy young service men and women becoming sick and dying from the flu were kept secret. In May, Spain became the first country to report flu deaths and so became the disease’s namesake.

    Photo courtesy of Denver Public Library Western History/Genealogy Dept.

    In October, Denver quickly ordered schools, churches, and places of amusement closed. Within a couple of weeks, Denver’s Board of Health also banned all meetings indoors or out, social gatherings in homes, and public funerals. The flu spread across Colorado and hit many small towns hard. It’s estimated that 675,000 Americans died of the Spanish Flu. Worldwide, 50 million people or roughly 1 in 30 infected died from the deadly virus. The ensuing large number of claims against life insurance policies skyrocketed, causing many small businesses to go bankrupt and disrupting the economy even further.

    Soldiers returning from overseas found warm welcomes but scarce jobs as wartime demand for Colorado products started slowing down. The prices of food and other goods began to rise, but wages did not keep pace with the rising inflation.

    The 1918 elections

    As the country marched toward the Tuesday, November 5, 1918, mid-term elections, WWI appeared to be winding down and the deadly influenza pandemic was ramping up. Earlier in the year, national campaigns agreed to downplay partisan differences in order to present a unified political front to the world, but these agreements were unraveling. The social climate of the war and loyalty perceptions may have played a significant role in some election results. The two Colorado incumbent Congressmen who voted against the 1917 war declaration were defeated, playing a part in flipping Congress to a Republican majority.

    There were three ballot proposals initiated by the citizens of Colorado:

    • Bone dry prohibition law. Colorado actually became a “dry” state—no alcohol allowed—in 1916, three years before the 18th Amendment to the United States Constitution regarding prohibition was ratified. In 1918, this initiated measure proposed to take prohibition a step further by closing certain loopholes that allowed liquor to be used for medicinal or religious purposes. Prohibitionists were successful in tying support for the additional restrictions to patriotism by condemning the use of the country’s precious grain supplies for the manufacture of alcohol instead of for the war effort. The statutory amendment passed 63% to 36%.
    • Placing state civil service in the Constitution. Colorado enacted its civil service laws and established a civil services commission in statute in 1907. This initiated measure amended the civil service laws and moved them to the state Constitution. The constitutional amendment passed 64% to 35%.
    • Relief of adult blind. This initiated measure established a blind benefit commission and a means to provide financial support for needy adults certified as blind. The statutory proposal passed 93% to 6%.

    Also, the General Assembly referred two Constitutional amendments to the people for approval:

    On the Monday following the election, November 11, 1918, the warring powers signed an armistice treaty to end the fighting in WWI. That morning, Denver health officials lifted the public meeting bans due to the deadly flu epidemic while thousands jammed downtown streets in celebration of Armistice Day. That evening, more than 8,000 people gathered in the municipal auditorium to sing together and listen to speeches. Movie and live theaters reopened that night to huge crowds. Eleven days later, 18 more flu sufferers died and public meetings, religious services, and private parties were once again banned, theaters were closed, and new rules now required people wear gauze masks while shopping.

    The Twenty-second Session of the Colorado General Assembly convened at noon on Wednesday, January 1, 1919, to a state in mourning, preparing to care for sick and injured returning soldiers and ready to address lingering public health concerns, increase employment, strengthen the state economy, and pay its debts.

  • 2018 Approved Interim Committee Bills – Part II

    As we shared last week, the Legislative Council met October 15, 2018, to consider interim committee bills recommended by eight of the 12 interim committees that met July through September. Two of the 12 interim committees were not required to submit their recommendations to the Legislative Council; the remaining two committees—the Pension Review Commission and the School Start Time Interim Study Committee—chose not to recommend legislation.

    In last week’s article, we reported on the bills approved for four of those committees. Today, we summarize those approved for the remaining four committees.

    Treatment of Persons with Mental Health Disorders in the Criminal Justice System

    The committee for the Treatment of Persons with Mental Health Disorders in the Criminal Justice System recommended four bills, none of which were approved by the Legislative Council.

    To review the bills recommended by the Treatment of Persons with Mental Health Disorders in the Criminal Justice System committee, please visit the committee’s website. For questions concerning the legislation, please contact Jane Ritter.

    Sales and Use Tax Simplification Task Force

    The Sales and Use Tax Simplification Task Force held four meetings during the 2018 interim. Briefings and presentations were made by the Office of Legislative Legal Services, Legislative Council Staff, the Colorado Department of Revenue, the Colorado Municipal League, the Council on State Taxation, the Streamlined Sales Tax Governing Board, the National Conference of State Legislatures, the Center for State Fiscal Reform, and members of the public on a wide range of topics, including:

    • The current Colorado sales and use tax system, with an emphasis on use tax;
    • Other states’ efforts to simplify their sales and use tax system;
    • The Colorado Municipal League’s standardized definitions project;
    • A request for information for an electronic sales tax system issued pursuant to House Bill 18-1022; and
    • Implementation of online sales tax collections following the U.S. Supreme Court South Dakota v. Wayfair decision.

    At the final meeting on September 27, 2018, the legislative members of the task force unanimously recommended one bill to the Legislative Council, which the Council approved.

    Bill A: Concerning an electronic sales and use tax simplification system, and, in connection therewith, requiring the department of revenue to conduct a sourcing method for the development of the system and establishing the implementation of the system for the acceptance of returns and processing of payments for the sales and use tax levied by the state and any local taxing jurisdictions.
    The bill requires the department of revenue (department), within existing resources, to conduct a sourcing method in accordance with the applicable provisions of the procurement code, and any applicable rules, for the development of an electronic sales and use tax simplification system (system). The bill also requires the department to involve stakeholders to develop the scope of work. The bill specifies that on and after the date the system is online, the department is required to accept any returns and payments processed through the system for state sales and use tax and for any sales and use taxes that are collected by the department on behalf of any local taxing jurisdiction. The bill specifies that it is the General Assembly’s intent that a certain number of local taxing jurisdictions with home rule charters voluntarily use the system when the system comes online and that all local taxing jurisdictions with home rule charters voluntarily use the system within a specified number of years.

    To review the bill recommended by the Sales and Use Tax Simplification Task Force, please visit the task force’s website. For questions concerning the legislation, please contact Esther van Mourik.

    Transportation Legislation Review Committee

    The biomass plant had an interesting way to unload trucks.

    The Transportation Legislation Review Committee took a two-day tour this year to fulfill its duty to review transportation projects. This involved the following:

    • Touring the project on Weld county Road 49;
    • Meeting with stakeholders to discuss the State Highway 402–I-25 interchange;
    • Reviewing the rebuilding US 34 repair and ground stabilization efforts after flooding washed away much of the road;
    • Touring the Eagle Valley Biomass Plant;
    • Reviewing the new overpass in Glenwood Springs;
    • Touring the Aspen–Pitkin County Airport;
    • Meeting with the fire command center in Basalt; and
    • Meeting with the Roaring Fork Regional Transportation Authority.

    The committee also met to propose and draft legislation. They ultimately recommended three bills to the Legislative Council, all of which were approved.

    Bill A: Concerning the exemption of the department of transportation from existing reporting and transportation commission approval requirements when it acquires land needed for specified highway-related purposes by means other than condemnation.
    Current law allows the department of transportation (CDOT) to acquire land in order to alter a state highway only after: (1) the chief engineer of CDOT provides a written report to the transportation commission that describes the project and all land to be acquired for the project, includes a map of the existing and future boundaries of the highway, and estimates the damages and benefits to each affected landowner; and (2) the commission determines that the project will serve public interest or convenience and adopts a resolution authorizing the chief engineer to offer affected landowners appropriate compensation.

    The bill authorizes CDOT, acting through the chief engineer, to acquire land in such circumstances by purchase or exchange without the chief engineer providing the report or the commission making a determination of public interest or convenience or authorizing the payment of compensation to affected landowners. If, however, CDOT needs to acquire land through condemnation, the chief engineer must provide the report and the commission must make the determination of public interest or convenience and adopt a resolution authorizing CDOT to acquire the land through the filing of a petition in condemnation.

    Bill B: Concerning the age requirement to drive a commercial vehicle in interstate commerce.
    The bill authorizes the department of revenue to adopt rules allowing a person who is at least 18 years of age but under 21 years of age to be licensed to drive a commercial vehicle in interstate commerce if operation of a commercial vehicle in interstate commerce by the person is permitted under federal law.

    Bill C: Concerning issuance of driving authorization documents to foster children who are under eighteen years of age.
    The bill exempts a foster child from being required, when being issued a driver’s license, to have his or her foster parent or other legal guardian sign an affidavit of liability if the child holds evidence of financial responsibility in his or her own name. Under current law, a county must obtain the permission of a foster parent to help a foster child obtain an instruction permit without a responsible adult signing an affidavit of liability, but the county need not obtain this permission if the foster child is at least 17 1/2 years of age. The bill lowers this requirement to age 17. To be issued a driver’s license, current law requires a minor to submit driving logs showing 50 hours of instruction. The bill broadens this to allow any person who is at least 21 years of age and who holds a driver’s license to sign a foster child’s driving logs if the person provided the instruction and the foster child has provided proof of financial responsibility. Current law, with some exceptions, requires a person who is under 16 years of age and who was issued an instruction permit to be instructed in driving by the person who signed the affidavit of liability. The bill authorizes anyone who is at least 21 years of age and who holds a driver’s license to instruct a foster child with a driving permit. The bill directs the department of personnel to create a program that pools insurance of a child who has been in a foster home for at least one year with the insurance on the state fleet to make insurance less expensive for the foster child. The department of personnel must accept and expend gifts, grants, or donations to implement this program.

    To review the bills recommended by the Transportation Legislation Review Committee, please visit the committee’s website. For questions concerning the legislation, please contact Jery Payne or Jason Gelender.

    Early Childhood and School Readiness Legislative Commission

    The Early Childhood and School Readiness Legislative Commission met four times from July through October. They received an update from the Early Childhood Leadership Commission, heard reports on program implementation from several state agencies, and took testimony from several community and advocacy groups, concerning issues pertaining to child care and education for young children. The Commission requested that staff draft several bills, two of which were ultimately recommended to the Legislative Council. The Council approved one of those two bills.

    Bill A: Concerning supporting high school students’ interest in early childhood education through the teacher cadet program
    The bill clarifies that high school students who are interested in early childhood education may participate in the teacher cadet program.

    To review the bills recommended by the Early Childhood and School Readiness Legislative Commission, please visit the commission’s website. For questions concerning the legislation, please contact Brita Darling.

  • Legislative Council Reviews and Approves 2018 Interim Committee Bills – Part I

    Since July, several legislative interim study committees met to hear testimony from experts and discuss policy issues that the Legislative Council prioritized for study last spring.  On Monday, October 15, the Legislative Council met to consider the bills recommended to them by these study committees. This week and next we will provide a summary of those bills that the Legislative Council approved.

    Before summarizing bills, we note that of the 13 prioritized committees, one – the Legislative Interim Committee on School Finance – is exempted by statute from the requirement to obtain approval of the Legislative Council to introduce its bills; and the Legislative Interim Workplace Study Committee must submit its recommendations to the Executive Committee. Accordingly, these committees met, but neither of them recommended bills to the Legislative Council.

    Alternatives to the Gallagher Amendment Interim Study Committee

    The Alternatives to the Gallagher Amendment Interim Study Committee met a total of five times over the 2018 interim, including one meeting in Glenwood Springs and one meeting in Pueblo. The committee had discussions with representatives of local fire, library, and water districts and county commissioners, as well as heard public testimony from the state’s small business community, regarding the impact of the Gallagher Amendment and the financial burden experienced as a result.

    At its final hearing on October 3, 2018, the committee considered seven bills and recommended three of them to the Legislative Council. At the Legislative Council meeting on October 15, 2018, the Council voted to introduce Bill B only:

    Bill B: Concerning the establishment of regional residential assessment rates.
    In response to contrasting residential property values across the state, the bill establishes eight regions in the state (according to the regions managed by the regional offices within the division of local government in the department of local affairs as of January 1, 2019) that the property tax administrator is then required to determine the residential assessment rate for, as opposed to the state-wide residential assessment rate currently required by law.

    To review the bills recommended by the Alternatives to the Gallagher Amendment Interim Study Committee, including those not approved by the Legislative Council, please visit the committee’s website. For questions concerning the legislation, please contact Ed DeCecco.

    Water Resources Review Committee

    The Water Resources Review Committee met six times during the 2018 interim. At the September 27, 2018, meeting, the committee considered and voted on five bill drafts and two joint memorial drafts that committee members requested in August. Pursuant to section 37-98-103 (1), C.R.S., a two-thirds majority of the Water Resources Review Committee members must vote to report a bill draft to the Legislative Council. Although the committee voted to report both of the joint memorial drafts to the Legislative Council, only two of the five bill drafts were approved by the necessary two-thirds majority of the committee.

    Bill A: Concerning the Republican river water conservation district, and, in connection therewith, expanding the boundaries of the district and adjusting the meeting schedule of the district’s board of directors.
    The boundaries of the Republican river water conservation district are currently established by statute as certain counties and portions of counties that are within the Republican river basin. The bill expands the boundaries by including in the district areas where groundwater pumping depletes the flow of the Republican river as contemplated by applicable United States Supreme Court case law. The composition of the district’s board of directors is adjusted accordingly. Current law requires the Republican river water conservation district board of directors to conduct regular quarterly meetings in January, April, July, and October. The bill changes these months to February, May, August, and November.

    Bill B: Concerning the methodology to distribute money in the severance tax operational fund after core departmental programs are funded without changing the transfers to the natural resources and energy grant programs.
    Money in the severance tax operational fund (operational fund) is primarily used for two purposes. The general assembly annually appropriates money from the operational fund for several core departmental programs, which were previously described as “tier-one programs”. If money remains after these appropriations and after a reserve requirement for the core departmental programs is satisfied, then the state treasurer transfers money to an array of funds that support natural resources and energy grant programs, which were previously described as “tier-two programs”. There is also a requirement that the reserve include an amount equal to 15% of the maximum transfers to natural resources and energy grant programs required by law, and this reserve is used for the transfers, if necessary. The bill changes the distribution of the money in the operational fund as follows:

    • Separates the reserve into the core reserve and the grant program reserve, while maintaining the overall purpose of each reserve;
    • Increases the maximum grant program reserve to 100% of the maximum transfers to the natural resources and energy grant programs required by law, which currently is equal to $36,378,072;
    • Requires the state treasurer to make the transfers to the natural resources and energy grant programs on August 15 after a fiscal year and to base the transfers on actual revenue as opposed to estimated revenue. Money from the grant program reserve may be used for these transfers; and
    • If all of the appropriations and transfers have been made and both reserves are full, then the state treasurer is required to transfer any money remaining in the operational fund to the severance tax perpetual base fund.

    Joint Memorial A: Concerning memorializing the United States Congress to fulfill the commitment of the federal government to provide funding for the Arkansas Valley Conduit project.
    This Senate joint memorial asks the United States Congress to fulfill its commitment to provide funding for the Arkansas Valley Conduit project, which was authorized by Congress as part of the Fryingpan-Arkansas Project in 1962 as a means to address water quality and availability issues in the Arkansas River basin east of Pueblo but was never built, largely because of the inability of participants to repay construction costs.

    Joint Memorial B: Concerning memorializing the United States Congress to enact legislation directing the United States Army Corps of Engineers, in conjunction and cooperation with the Lower Arkansas Valley Water Conservancy District, to dredge a portion of the Arkansas River.
    This Senate joint memorial asks the United States Congress to immediately enact legislation that directs the United States Army Corps of Engineers, in conjunction and cooperation with the Lower Arkansas Valley Water Conservancy District, to dredge a portion of the Lower Arkansas River from below the Fort Lyons diversion to the John Martin Reservoir, including a “pinch point” through which the river passes as it traverses between the towns of La Junta, on the south bank, and North La Junta, on the north bank.

    To review the bills and memorials recommended by the Water Resources Review Committee, please visit the committee’s website. For questions concerning the legislation, please contact Thomas Morris, Jennifer Berman, or Richard Sweetman.

    Wildfire Matters Review Committee

    The Wildfire Matters Review Committee held four hearings during the 2018 legislative interim. During these hearings, the committee heard from public and private agencies and organizations on the front lines of wildfire prevention and mitigation in Colorado, including the Division of Fire Prevention and Control within the Department of Public Safety, the United States Forest Service, the Colorado State Forest Service (CSFS), the Colorado Division of Insurance, public utilities, the Colorado State Fire Chiefs, and the Colorado Sheriff’s Association. Over the course of its hearings, the committee heard presentations on such topics as the use of drones in fire suppression, the role of forest management in mitigating wildfire risk, the condition of the state’s timber industry, incentives from insurers and local governments to assist in fire mitigation efforts, the effects of the Gallagher Amendment on local fire-fighting resources, the efforts of utilities to make their systems more resistant to natural disasters, and partnerships the CSFS has entered into with other stakeholders to improve wildfire fighting and mitigation efforts.

    At its final meeting, the committee voted to recommend four bills to the Legislative Council, three of which were approved.

    Bill A: Concerning development of a system to patrol the airspace above wildland fires.
    This bill requires the center of excellence for advanced technology aerial firefighting, subject to available appropriations, to study and, if feasible, implement a system to patrol the airspace above a wildland fire.

    Bill B: Concerning measures to mitigate the effects of wildfires within wildland-urban interface areas, and, in connection therewith, creating a state grant program to promote forest management fuels reduction projects in such areas.
    This bill creates a state grant program that the CSFS will administer to fund proactive forest management fuels reduction projects to reduce the impacts to life, property, and critical infrastructure caused by wildfires. Groups of individual landowners whose land is in an area covered by a community wildfire protection plan are eligible to apply for a grant award. The bill specifies requirements pertaining to the evaluation of grant proposals. The CSFS must select the proposals that will receive funding, administer the grant program, and develop procedures by which applicants will apply for grants. The bill imposes a monetary limit on the amount of a grant and requires a grant applicant to demonstrate an available amount of matching funds to be awarded a grant. The bill requires the CSFS to report annually to the general assembly on the number, location, and benefits of all projects for which a grant award is made.

    Bill D: Concerning the power of a county to restrict the use of fireworks during the period between May 31 and July 5 of any year.
    Under current law, a county may prohibit or restrict by ordinance the sale, use, and possession of fireworks, including permissible fireworks (fireworks restrictions), for a period that does not exceed one year in length within all or any part of the unincorporated areas of the county; except that the county may not have such an ordinance in effect between May 31 and July 5 of any year unless the ordinance includes an express finding of high fire danger, based on competent evidence. The bill specifies that such an ordinance is in effect for the period between May 31 and July 5 of any year only if the county adopts by resolution such fireworks restrictions for such period, which resolution includes an express finding of high fire danger, based on competent evidence.

    The bill also adds as a source of competent evidence justifying a finding of high fire danger predictions of future fire danger such as those issued by the national interagency coordination center or any successor entity.

    To review the bills and memorials recommended by the Wildfire Matters Review Committee, please visit the committee’s website. For questions concerning the legislation, please contact Bob Lackner or Megan Waples.

    Opioid and Other Substance Use Disorders Study Committee

    The Opioid and Other Substance Use Disorders Study Committee met five times over the interim and heard from state agencies and officials and stakeholders representing all aspects of the substance use disorder crisis. The committee also held several stakeholder meetings to discuss potential legislation. The committee requested the drafting of five bills and voted to advance all five bills to Legislative Council. Of the five bills recommended, the Legislative Council approved two:

    Bill B: Concerning supports for persons recovering from substance use disorders, and, in connection therewith, expanding a program in the department of local affairs that provides vouchers for housing assistance to certain individuals, requiring each recovery residence operating in Colorado to be licensed by the department of public health and environment, and creating the opioid crisis recovery fund.
    The bill:

    • Expands the housing voucher program currently within the department of local affairs to include individuals with a substance use disorder and appropriates $4.3 million each of the next 5 fiscal years to support the program;
    • Requires each recovery residence operating in Colorado to be licensed by the department of public health and environment; and
    • Creates the opioid crisis recovery fund for money the state receives as settlement or damage awards resulting from opioid-related litigation.

    Bill E: Concerning treatment of individuals with substance use disorders who come into contact with the criminal justice system, and, in connection therewith, making an appropriation.
    The bill:

    • Requires the Colorado commission on criminal and juvenile justice to study and make recommendations concerning:
      • Alternatives to filing criminal charges against individuals with substance use disorders who have been arrested for drug-related offenses;
      • Best practices for investigating unlawful opioid distribution in Colorado; and
      • A process for automatically sealing criminal records for drug offense convictions.
    • Requires the department of corrections (DOC) to allow medication-assisted treatment to be provided to persons who were receiving treatment in a local jail prior to being transferred to the custody of the DOC. The DOC may enter into agreements with community agencies and organizations to assist in the development and administration of medication-assisted treatment.
    • Contains a legislative declaration that the substance abuse trend and response task force should formulate a response to current and emerging substance abuse problems from the criminal justice, prevention, and treatment sectors that includes the use of drop-off treatment services, mobile and walk-in crisis centers, and withdrawal management programs as an alternative to entry into the criminal justice system for offenders of low-level drug offenses.
    • Directs the department of health care policy and financing to seek federal authorization under the Medicaid program for treatment of substance use disorders for persons confined in jails.
    • Creates a simplified process for sealing convictions for level 4 drug felonies, all drug misdemeanors, and any offense committed prior to October 1, 2013, that would have been a level 4 drug felony or drug misdemeanor if committed on or after October 1, 2013. A defendant may file a motion to seal records three years or more after final disposition of the criminal proceedings. Conviction records may be sealed only after a hearing and upon court order.
    • Requires jails that receive funding through the jail-based behavioral health services program to allow medication-assisted treatment to be provided to individuals in the jail. The jail may enter into agreements with community agencies and organizations to assist in the development and administration of medication-assisted treatment.
    • Provides an appropriation, including for the following programs funded through the annual long appropriations act:
      • Increasing from four to 10 the number of the law-enforcement-assisted diversion pilot programs; and increasing corresponding funding for criminal justice diversion pilot programs in the office of behavioral health in the department of human services.

    To review the bills and memorials recommended by the Opioid and Other Substance Use Disorders Study Committee, please visit the committee’s website. For questions concerning the legislation, please contact Kristen Forrestal, Yelana Love, or Brita Darling.

  • An Introduction to Initiatives (Continued)

    by Ed DeCecco

    I know that the end of part one of this article was quite the cliffhanger, and you’ve probably been obsessively refreshing the LegiSource page to see what happens after the Title Board sets the ballot title for an initiative. So, without further delay, here is the conclusion of the initiative process.

    Signature Gathering

    Once the ballot title is officially set, the proponents may proceed to the signature-gathering phase, which many people think of as “those times when I’m accosted outside of King Soopers to sign something, but that is not nearly as fun as being accosted to buy Girl Scout cookies.” (Okay, that might just be me.) The reason for these encounters is that the state constitution requires that an initiative petition be signed by a number of registered electors in the state that is greater than or equal to 5% of the total number of votes cast for all candidates for the office of Secretary of State at the previous general election. Currently, that threshold is 98,492 signatures. Lucky for designated representatives, they may use volunteer and paid petition circulators to help gather signatures.

    As a result of Amendment 71, an initiative from 2016, if the initiative is for a constitutional amendment, then 2% of the total required signatures must also come from each Senate District. This has had a twofold effect. First, it means that citizens throughout the state are involved in the petition process for constitutional initiatives. Second, it’s been a major boon for businesses that sell maps of the state Senate Districts.

    Circulators must collect the signatures on petition sections approved by the Secretary of State, which include LCS’s fiscal information abstract on the first page of the initiative section and have spaces for the electors to sign their name and identify the address. So, if someone outside of King Soopers asks you to sign anything other than this official form, then congratulations, you’re famous, and someone wants your autograph.

    Submission and Verification of Petitions

    The designated representatives must turn in their signed initiative petitions to the Secretary of State no later than six months after the date a ballot title is set or three months before the election, whichever date is sooner. Secretary of State Wayne Williams will then personally review and verify each signature submitted, oftentimes visiting with each elector to confirm that he or she signed the petition. (Not true. I was just checking to see if you were still paying attention.) The Secretary of State’s office will verify that the petition is signed by registered electors of the state using random sampling, and, depending on the number of valid signatures, possibly a line-by-line analysis.

    If there are enough signatures to meet the constitutional requirements, then the Secretary of State will deem the petition sufficient, and barring a successful protest against the determination, the proponents have successfully navigated the initiative process and the measure will appear on the ballot.

    Blue Book

    But before jumping to the ballot, a word about the Blue Book is in order. Named as an homage to The Beatles eponymous album or, perhaps, because it has a blue cover, the Blue Book is the excellent ballot information booklet published by LCS as required by the state constitution. It includes the full text of the initiative, the title, a fair and impartial analysis, and arguments for and against it. If the measure is a matter arising under TABOR, then it will also include fiscal information required by that initiative, which was approved by voters in 1992.

    LCS prepares three drafts of the measure, and solicits feedback from interested parties and the public. The Legislative Council committee considers LCS’s final draft and may modify it with a 2/3rds vote. Once completed, the Blue Book is mailed to every residence in the state with a registered elector. Everyone should have received the 2018 version. It is just a smidge shorter than Moby Dick because it describes a total of 13 initiated and referred measures.

    Ballot

    Having gone through the appropriate steps, an initiative will appear on the ballot. Initiated constitutional amendments are numbered consecutively from 1 to 99 and are referred to as “amendments.” Initiated statutory changes are numbered consecutively from 101 to 1999 and are referred to as “propositions.” (See §1-5-407, C.R.S.) To pass, an amendment requires 55% of the votes cast, unless the measure just repeals a provision, in which case it requires a majority vote, which is the same amount needed to pass an initiated statutory change (See Art V, §1(4)(b) of the Colorado Constitution).

    If approved by voters, the initiative will officially become part of the Colorado Constitution or the Colorado Revised Statutes, and the designated representatives may finally rest on their laurels. I, on the other hand, may have to prepare a LegiSource article about their successful endeavor. So thanks for that!

     

    For additional resources about the initiative process, check out these helpful links:

    https://www.sos.state.co.us/pubs/elections/Initiatives/InitiativesHome.html

    https://leg.colorado.gov/content/how-file-initiatives

  • An Introduction to Initiatives

    by Ed DeCecco

    While sitting in Starbucks, filling out the 2018 general election mail ballot, and sipping what might be your last Pumpkin Spice Latte for the season, you might think to yourself, “Only seven statewide initiatives—why aren’t there more of these delightful, thought-provoking questions?”[1] You might even be inspired to become an active participant in Colorado’s robust system of direct democracy. If so, here is an initiative-process primer to help you.

    Initiating the Initiative

    To paraphrase Lao Tzu, the journey of a thousand signatures begins with a single email to Legislative Council Staff (LCS). That is, proponents begin the initiative process by submitting to LCS a draft of the initiative to change the Colorado Revised Statutes or amend the Colorado Constitution, or occasionally to do both. The petition must be typewritten and legible and contain the text of the initiated measure, and it must include the names and mailing addresses of the two designated representatives of the proponents. Proponents are encouraged to write the measure “in plain, nontechnical language and in a clear and coherent manner using words with common and everyday meaning that are understandable to the average reader.”[2]

    Review and Comment

    Two weeks after submission to LCS, LCS and the Office of Legislative Legal Services (OLLS) are required “to render their comments to the proponents of the petition concerning the format or contents of the petition at a review and comment meeting that is open to the public.”[3] Upon reading this rather formal-sounding requirement, one might think that the review and comment meeting is akin to the senate committee grilling Michael Corleone. It’s not. In fact, it is not a hearing at all because it is not conducted by a legislative committee and there no witnesses. Instead, it is a relaxed discussion at the State Capitol between staff, the designated representatives, (both of whom are required to attend the meeting), and the designated representatives’ attorney, if they have one.

    But, like the scene from The Godfather II, the designated representatives will have a script for their discussion. At least 48 hours prior to the meeting, staff from OLLS and LCS will give the proponents a Review and Comment Memorandum, which includes our view of the proposal’s major purposes and our substantive and technical comments and questions. At the meeting, staff will read the review and comment memorandum aloud and provide the proponents with a chance to respond.

    Many proponents view this as an opportunity to provide a record of their intent and to see if they can improve the measure. Others do not. For example, one set of proponents responded to each question and comment by saying something along the lines of, “Thank you very much for the question. We will take it under consideration.” Which is fine, as the designated representatives are under no obligation to answer our questions or make any changes after the review and comment meeting. This is their initiative and they are free to disregard our comments, considered and wise as they hopefully may be, and proceed to title setting.

    Many times, however, the designated representatives will make changes based on staff’s questions and comments. If so, they can resubmit the measure to LCS for another review and comment meeting. Alternatively, if all of their changes are directly in response to staff suggestions, they may make the changes and proceed to title setting.

    Setting the Ballot Title

    Initiatives do not appear in their entirety on the ballot, which is beneficial to everyone other than the printers paid to prepare the ballots. Instead voters are presented with a question known as a ballot title, which is in a form that they can answer “yes/for” or “no/against.” A ballot title is a summary of what the initiative does and includes the single subject and central features of the proposal. It cannot include slogans or catch phrases, and it must be brief.

    To procure a ballot title, the designated representatives must submit their finalized initiative to the Secretary of State and appear at a title board meeting. These meetings occur on the 1st and 3rd Wednesdays from December through May. The title board consists of representatives from the Attorney General’s office, the Secretary of State’s office, and the OLLS. If the initiative is properly before the title board, and if the title board determines the measure has a single-subject, which is a constitutional requirement, then it will set a ballot title.

    Prior to the title board meeting, LCS will prepare an initial fiscal impact statement and an abstract of the fiscal impact. These numbers are a sneak peak of the fiscal impacts that will be described in the Blue Book, and the abstract is used in the next phase in the initiative process.

    If the proponents or literally any other registered voter in the state is dissatisfied with a ballot title or the title board’s failure to set a ballot title, or with the abstract prepared by LCS, then he or she may file a motion for rehearing with the Secretary of State within seven days after the title board’s decision. The rehearing decision may be further appealed to the Colorado Supreme Court, which will hear the case on an expedited schedule. Obviously, these appeals can add a few extra steps for the designated representatives. On the bright side, this appeal means the proponents would have completed a coveted state government trifecta: legislative branch for review and comment; executive and legislative branch for title board; and judicial branch for the final review. How many citizens can say that? Not many.

    “Not many” is also the answer to the question, “How many people will keep reading this blog if it gets any longer?” Check back for the next installment to read about the remainder of an initiative’s amazing administrative journey.

     

    [1] I realize this may be an unlikely scenario. You may actually be having your first Peppermint Mocha of the season while voting and thinking about how much you like initiatives.

    [2] § 1-40-105 (1), C.R.S.

    [3] Id.; see also Legislative Council Rules for Staff of Legislative Council and Office of Legislative Legal Services Review and Comment Filings (9)(a), which requires the meeting to take place two weeks after submission, with some exceptions.

  • When More is More

    by Jery Payne

    A United States Court of Appeals’ opinion begins, “For want of a comma, we have this case.” The facts are simple. Delivery drivers employed by a Maine dairy company were suing for overtime. The dairy wasn’t paying them overtime, which they believed the law required.

    Whether the law required it was not so simple. The law states that the overtime protection law does not apply to:

    The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

    (1) Agricultural produce;

    (2) Meat and fish products; and

    (3) Perishable foods.

    The intent appears to be that overtime shouldn’t be required for jobs when dawdling might cause food to perish. The court was wrestling with whether this exemption covers delivery drivers.

    Is the phrase packing for shipment or distribution of one item or two items on the list? In other words, which of the following is exempted?

    • Packing for shipment and packing for distribution; or
    • Packing for shipment and any kind of distribution.

    The dairy argued that distribution of should be read as one item on the list. If the distribution of perishables is read as one item on the list, then the law doesn’t require the dairy to pay the delivery drivers overtime. But if the whole phrase packing for shipment or distribution of is meant to be read together, then the dairy owed the delivery drivers a lot of money.

    The statute has at least one of two grammar errors. Notice that the list starts with a series of gerunds, which is a five-dollar word for a noun created by adding “ing” to the end of a verb: canning, processing, preserving, freezing, drying, marketing, storing, packing. And distribution of isn’t a gerund. Because every other item on the list is a gerund, the grammar indicates that the phrase was intended to be one item, packing for shipping and distribution of. But if this is true, then the statute is missing the word “or” before the last item of the list. It should read marketing, storing, or packing for shipment or distribution of. And it doesn’t. So the statute should have been written in one of two ways:

    • …marketing, storing, or packing for shipment or distribution of:
    • …marketing, storing, packing for shipment, or distributing of:

    These dueling errors bedeviled the court, so it gave up trying to parse the sentence. It decided that the ambiguous exception should be read narrowly and ruled that the dairy had to pay the delivery drivers.

    As I mentioned, the court pointed out several times that an Oxford comma would have solved the issue. If the statute had read storing, packing for shipment, or distribution of perishables, it would have been clear that the statute covered the delivery drivers.

    So using the Oxford comma is good advice. We aim to use it in the Colorado Revised Statutes.

    But what if the legislature hadn’t intended to cover the delivery drivers? How could we draft the statute so that it is clear? What if we repeated the preposition of?

    The canning of, processing of, preserving of, freezing of, drying of, marketing of, storing of, or packing for shipment or distribution of:

    (1) Agricultural produce;

    (2) Meat and fish products; and

    (3) Perishable foods.

    Now the statute is clear.

    I bet I know what a lot of you are thinking: “We don’t need all those extra prepositions, of. Just don’t forget the disjunctive, or.” No, I suppose in this case we didn’t need the extra prepositions. But they do help. And what about the following statute[1] that authorized the defendants to move a case to federal court:

    Any officer of the United States or any agency thereof …

    Can any officer of any agency move the case to federal court? Or does the defendant have to be the agency itself? In other words, the list was ambiguous because it could be read either of these two ways:

    • An officer of the US or an officer of an agency of the US; or
    • An agency of the US or an officer of the US.

    The United States Supreme Court settled this issue by deciding that an officer of an agency could move the case. They decided that Congress meant an officer of an agency. If that is the correct intent, repeating the preposition of would have solved the issue:

    Any officer of the United States or of any agency thereof …

    I know that people will be tempted to dispense with the repetitious preposition in a list, but repeating those prepositions does remove ambiguity. My advice is to repeat those prepositions when clarity is at stake.

     

    [1] Hat tip to Bryan Garner from his Advanced Legal Drafting Course.