Colorado LegiSource

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

Author: olls

  • Maximum Reserve

    by Ed DeCecco

    Sadly, “Maximum Reserve” is not the name of the next Jerry Bruckheimer summer blockbuster. Nor is it even an oft used term. By last count, it appears in a measly .0000003% of sampled books. That makes your odds of randomly picking up a book with this phrase about the same as winning the lottery.  Unless, that is, your book shelf possesses three feet of handsome red volumes, known as the Colorado Revised Statutes. Then this is indeed your lucky day because “maximum reserve” is a defined term in section 24-75-402, C.R.S., and is at the heart of the statutory limit on the uncommitted reserves in a cash fund.

    The “maximum reserve”[1] is defined as “sixteen and five-tenths percent of the amount expended from a cash fund during the fiscal year” and is used to create a limit on the uncommitted reserves in a cash fund at the end of a fiscal year. So, if a state agency spends $1,000,000 from a cash fund during a fiscal year, then the maximum amount that can be left in the cash fund at the end of the year is $165,000, which is roughly equal to two months of its spending.

    Except if it is not. Sometimes an alternative limit is appropriate. To address this, the General Assembly created the cleverly named “alternative maximum reserve,”—side note: also a good name for the movie sequel—which is a maximum reserve balance established in the constitution, by law, or Joint Budget Committee (JBC) waiver (more on that later) that is different from 16.5% of the amount expended. For example, the General Assembly could establish an alternative maximum reserve of 25% of the amount expended or even a specific dollar amount.

    If a state agency exceeds the applicable reserve limit for a fiscal year, then it is required to reduce the fees the agency collects in the next year so that it won’t do so again. The agency may subsequently raise a fee, but only if doing so won’t cause it to have excess uncommitted reserves. And if there are excess uncommitted reserves for three or more years, then the agency must deliver a hostage to the State Controller’s office until it complies. (Sorry, I’ve been binge watching Game of Thrones.) The real penalty is that the State Controller will restrict the amount of money available to be spent from the cash fund.

    Now, a statutory requirement without exceptions is like an Elvis impersonator without a sequin jumpsuit, and the limitations on uncommitted reserves are replete with them. The limit only applies to a “cash fund,” which in this context means “any fund that is established in law for a specific program or purpose and that includes moneys from fees,” but excluding the state general fund, any federal fund, and a fund used by a state institution of higher education. So, you’ll be happy to know that the state is free to have a general fund surplus that exceeds the maximum reserve.

    In addition, a cash fund is a depository for “fees,” which, for purposes of the maximum reserve, are any money collected or received by an entity but excluding, among other things:

    • Revenue that is not state fiscal year spending;
    • Fines or other criminal penalties;
    • Money transferred from the state general fund;
    • Non-discretionary charges or assessments;
    • Interest and income; and
    • Gifts or donations. (Everybody loves gifts. C’mon, who would want a cap on those?)

    So if a cash fund consists entirely of non-fee revenue, then the maximum reserve does not apply, and if a cash fund is a mix of fee and non-fee revenue, then the non-fee revenue is proportionally excluded from the uncommitted reserves.

    But wait! That’s not all! The limit on uncommitted reserves also doesn’t apply to cash funds established to fund capital construction, cash funds with uncommitted reserves that are less than $200,000, cash funds only used for a program that is less than two years old, and a bunch of cash funds that are expressly excluded from the limit.

    Finally, a state agency can solicit the JBC for a waiver from the maximum reserve based on specific circumstances. The JBC can, for up to three years, grant an exemption or establish an alternative maximum reserve for the agency. Given that state agencies sometimes have perfectly good reasons to exceed the maximum reserve, this seems like an efficient alternative to enacting legislation to specifically exempt a single cash fund. And fewer bills to be drafted means fewer bill drafters…hey, wait a minute!

    Admittedly, there are numerous exceptions. But considering that there are scads of cash funds,[2] it still has a broad application. Plus, these exceptions can be better understood when viewed in light of the avowed purpose of the limit on uncommitted reserves. Because fees contribute to the TABOR fiscal year spending limit, it is necessary to keep them in check by establishing a reasonable reserve derived from fee revenue.

    And don’t think that the limit on uncommitted reserves was created and then immediately forgotten—like this legislative staff blog article, for example. The State Controller is required to annually prepare a report to be delivered to the JBC and the Office of State Planning and Budgeting identifying the uncommitted reserves for each state cash fund, and the State Auditor is required to audit the report.

    Well, that’s probably about all you want to read about limits on uncommitted reserves for cash funds, and I need to start work on my screenplays for the “Maximum Reserve!” movie franchise, so I bid you adieu.

     

    [1] The “maximum reserve” was formerly known as the “target reserve,” which gave the misimpression that state agencies should aspire to have that amount in reserve at the end of each year. Thanks to Alfredo Kemm, Joint Budget Committee Staff, for suggesting the sensible rebranding.

    [2] Perhaps, too many? See “A Legislator’s Guide to Creating Cash Funds.”

  • U.S. Supreme Court Holds Prohibition on Disparaging Trademarks Unconstitutional

    by Jery Payne

    A while back I wrote about event signs, license plates, and government speech. That post covered Walker v. Texas Div., Sons of Confederate Veterans, Inc., in which the U.S. Supreme Court held that Texas could deny an application for special license plates because it didn’t like the message expressed on the plates. This bit of content discrimination did not fall afoul of the Free Speech Clause of the First Amendment because the Court decided that the content of special license plates is government speech.

    Now the Court has ruled on another case where the federal government discriminated based on content. In this case involving trademark registration, the government relied heavily on the Walker case, arguing this bit of content discrimination is also government speech. But the Court struck down the law anyway.

    Although people are calling it the “Slants case,” the actual case name is “Matal v. Tam.” The Slants are a pop-rock band whose members are of East Asian descent, so the band chose the name to “reclaim” and “take ownership” of stereotypes about people of East Asian ethnicity. The band filed for trademark registration of the band name, “Slants.”

    By Gage Skidmore, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=54532298

    Federal law, however, forbids the registration of a trademark that “[c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute….” The term “slants” has been used as a disparaging term for East Asians, so the trademark examiner refused to register the trademark.

    The band took the examiner to court. The case wended its way to the Supreme Court, where the government defended the statute based on the Walker decision. They argued that trademark registration is government speech. And you can see why because the two cases have a lot in common. The messages in both cases are:

    (1) Benefiting from a government program;

    (2) Intended for private use, which often means for commercial use;

    (3) Placed on privately owned property; and

    (4) Originating from private citizens.

    Despite coming from private citizens, the court held in Walker that the messages on special license plates are government speech. But when you take seriously the notion that these messages come from the government, the messages conveyed are often contradictory and frequently weird or even nonsensical. The license plates in the Walker case included the state of Texas celebrating Oklahoma football, advising that you can “get it sold” with RE/MAX, or saying “I’d rather be golfing.” Can a state government golf?

    The Court pointed out in the Matal case that considering trademarks government speech is just as weird:

    [W]hat does the Government have in mind when it advises Americans to “make.believe” (Sony), “Think different” (Apple), or “Have it your way” (Burger King)?

    The Matal case, like the Walker case, involves speech that comes from a private citizen but seeks to benefit from a government program. In other words, the facts of both cases exist in a gray area between what is clearly government speech that doesn’t fall under the Free Speech Clause and what is clearly private speech that does fall under the Free Speech Clause. In the Matal case, the Court explained the difference:

    This brings us to the case on which the Government relies most heavily, Walker, which likely marks the outer bounds of the government-speech doctrine. Holding that the messages on Texas specialty license plates are government speech, the Walker Court cited three[1] factors … First, license plates have long been used by the States to convey state messages. … Second, license plates ‘are often closely identified in the public mind’ with the State, since they are manufactured and owned by the State, generally designed by the State, and serve as a form of ‘government ID.’ … [N]one of these factors are present in this case.

    So the Court decided that (1) Walker “likely marks the outer bounds of the government-speech doctrine,” (2) the mere fact that a message may benefit from a government program does not make it government speech, and (3) the messages must be closely identified with the state “in the public mind” to constitute government speech. Trademarks are meant to identify businesses, and most people think of a business, not a government, when they see a trademark; there isn’t the same likelihood that people will think the government is sending the message.

    In deciding these cases, the Court shrunk the area of uncertainty between government speech and private speech. The license-plate case had the potential to take a large bite out of First Amendment protections. Copyright law also provides a government benefit to private speech, and the government relied heavily on this idea in the Matal case. Copyright applies to virtually all books, magazines, and blogs. If the Court had determined that simply granting a benefit gives the government the ability to regulate content, then the government could regulate the content of most writings. But instead, the Court made it clear that merely bestowing a government benefit on a “speaker” does not give the government the ability to regulate the content of the speech.

    [1] The third factor isn’t relevant to this article.

  • Teachers’ Loyalty Oaths and the Constitution

    by Julie Pelegrin

    Last week, we discovered that teachers and professors must take an oath to uphold the federal and state constitutions and to faithfully perform their duties. Originally, however, they also had to swear to “teach … respect for the flags of the United States and of the State of Colorado, reverence for law and order and undivided allegiance to the government of one country, the United States of America.”

    Several states adopted similar requirements generally starting in the 1920s and continuing into the 1950s. During this period, many people were concerned about the possibility of subversive elements within the government, including the public schools. By the 1960s, teachers and professors were concerned that taking these oaths violated their constitutional rights. So they started suing.

    One of the first cases was Baggett v. Bullitt out of Washington. In 1931, the state of Washington passed a law requiring teachers to take an oath that was almost verbatim the same as the oath adopted in 1921 in Colorado. In the early 1960s, a group of faculty, staff, and students at the University of Washington sued, claiming the oath was unconstitutionally vague. Generally, courts have held that a law that forbids or requires conduct in terms so vague that persons of common intelligence have to guess what it means is unconstitutional because it violates due process.

    The plaintiffs lost at the trial court level, so Baggett v. Bullitt ended up in front of the U.S. Supreme Court in 1964 where the Court held that the oath was too vague. The Court recognized that there are many activities that could be interpreted as violating a promise to promote respect for the flag, including refusing to salute for religious reasons.

    The Court also found that it would be difficult to predict what actions could be interpreted as violating a promise to “promote … undivided allegiance to the … United States of America.” The Court found that

    It would not be unreasonable for the serious-minded oath taker to conclude that he should dispense with lectures voicing far-reaching criticism of any old or new policy followed by the Government of the United States. He could find it questionable under this language to ally himself with any interest group dedicated to opposing any current public policy or law of the Federal Government, for if he did, he might well be accused of placing loyalty to the group above allegiance to the United States.

    Despite the Baggett decision, the Colorado statute remained on the books. Then in 1967, University of Colorado Professor Alan Gallagher refused to take the oath and sued the president of the university—Joseph Smiley— and the Board of Regents. Professor Gallagher claimed the oath violated his constitutional rights because it was vague and overly broad. The federal district court for Colorado agreed. They followed the Baggett decision and issued an injunction prohibiting CU from requiring its professors to take the statutory oath.

    But before the court ruled, the CU Board of Regents in February of 1967 had adopted a resolution requiring CU professors to take a different oath:

    I solemnly swear or affirm that I will support the Constitution of the State of Colorado and of the United States of America and the laws of the State of Colorado and of the United States.

    Professor Gallagher’s case did not challenge the Board of Regents’ new oath, and the court did not consider whether it was constitutional. So, the court’s injunction prohibited CU from requiring the statutory oath, but faculty still had to take the Regents’ oath.

    A few months later in the fall of 1967, a group of CU professors and employees, this time led by Professor Elizabeth Hosack, sued claiming the Regents’ oath was also unconstitutionally vague and that it violated their First Amendment rights to freedom of expression.

    The United States District Court for the District of Colorado found that the Regents’ oath was not unconstitutionally vague, but “plain, straight-forward, and unequivocal. A person taking it is not left in doubt as to his undertaking. The obligation assumed is one of simple recognition that ours is a government of laws and not of men.”

    The panel also found that the oath did not infringe on the professors’ and employees’ freedom of expression.

    Recognition of and respect for law in no way prevents the right to dissent and question repugnant laws. Nor does it limit the right to seek through lawful means the repeal or amendment of state or federal laws with which the oath taker is in disagreement. Support for the constitutions and laws of the nation and state does not call for blind subservience.

    This opinion came out in December of 1967, and in 1969 the General Assembly passed House Bill No. 1194, which changed the wording of the statutory oath to what we have today:

    I solemnly (swear) (affirm) that I will uphold the constitution of the United States and the constitution of the state of Colorado, and I will faithfully perform the duties of the position upon which I am about to enter.

    The statutory oath is similar to the Regents’ oath; the teacher or professor is promising to uphold the federal and state constitutions and to faithfully perform his or her duties. Further, there is no mention of respect for the flags, reverence for law and order, or undivided allegiance.

    In the fall of 1969, a group of Denver Public School teachers and professors from several Colorado universities and colleges sued in federal court to prevent implementation of the new oath. Again, they were claiming that the oath was unconstitutionally vague and deprived them of their First Amendment rights. And again, the federal district court disagreed, upholding the statute as constitutional.

    The three-judge panel followed the decision in the Hosack case, finding that there was nothing vague about promising to uphold the federal and state constitutions. The plaintiffs then claimed that the promise to faithfully perform their duties was too vague. The judges disagreed. “The state can reasonably ask teachers in state schools to subscribe to professional competence and dedication. This portion of the oath…imposes no restrictions on a teacher’s political expressions. It is certain that there is no right to be unfaithful in the performance of duties…. ”

    At the end of its decision, the panel of judges admitted that they were puzzled as to why the plaintiffs found the taking of an oath so “obnoxious.” While the court understood that the plaintiffs felt that they didn’t know what they were promising and had reservations about what the significance of the oath was, the court refused to find these reservations as a basis for holding the oath invalid. “The decision as to [the] worth or value [of the oath] is for the legislature, and we are not prepared to say that it does not serve a purpose any more than we could say that the constitution itself is valueless.”

    The loyalty oath for teachers and professors remains in the Colorado Revised Statutes. Presumably the General Assembly continues to find that it serves a purpose.

  • Teachers Required to Pledge Their Loyalty…Still

    Teachers Required to Pledge Their Loyalty…Still

    by Julie Pelegrin

    Since 1921, the law has required elementary, junior, and high school teachers and college and university professors to take what’s called a “loyalty oath” affirming their loyalty to both the country and the state. The wording of the oath has changed over the years and been challenged a couple of times in court, but it’s still on the books as a requirement for licensed teachers or for employment as faculty in a public postsecondary institution.

    Oaths to uphold the constitution are common for elected officials. Since 1876, the Colorado Constitution has required every legislator and every other elected officer to take an oath to uphold the U.S. and Colorado constitutions and to “faithfully perform the duties of his office according to the best of his ability.”

    But in 1921, the General Assembly passed S.B. No. 123, by Senator Alexander R. Young and Representatives Mabel Ruth Baker and Charles C. Sackmann, entitled “An act to provide for an oath or affirmation of allegiance to be taken by all persons who are teaching or who may hereafter be employed to teach in public, private or parochial schools or other institutions of learning in the state of Colorado.”

    Why then? And why teachers?

    Think back to your American and world history classes. The United States helped broker the armistice that ended World War I—the “war to end all wars”— in 1918. Also, the Russian Revolution, which eventually resulted in the Bolsheviks taking over the government and installing the Communist regime, occurred in 1917.

    According to the Fort Collins Courier, in an editorial titled “Teachers Must Swear Loyalty,” published August 23, 1919, during the war, “a number of cases came to light of teachers who openly or by clever insinuation tried to undermine the children’s belief in their country, its cause and in the fundamental ideals of honest democracy. Although such cases were not common, they were numerous enough to create a real menace.” The Steamboat Pilot (“Gossip of State Capital” Feb. 16, 1921), also noted that “[d]uring the World war many disloyal teachers were uncovered, especially in Denver.”

    The Courier was in favor of a new law passed by Ohio that required all teachers in public, private, and parochial schools to take an oath of allegiance to the United States, at least for elementary, middle, and high schools. However, with regard to colleges and universities, the Courier thought “application of the law to be of dubious wisdom.” They didn’t want the law to cut off the benefits of having exchange professors who explained the viewpoints of their respective countries. They recognized that lectures by professors visiting from other countries could “bring about a pleasanter relationship based on mutual understanding.” But they also noted that the law “would of course keep out the propagandist and the man with dangerous alien doctrines.”

    Support for the bill was not unanimous across the state, however. The Leadville Herald Democrat opposed the bill in February of 1921, noting that the governor of Montana had vetoed a similar bill and urging Governor Shoup of Colorado to do the same once the bill landed on his desk. The Herald Democrat noted that requiring a teacher to declare his or her belief in the “‘American form’ of government” was supposed to “minister to a sort of super-patriotic sentiment” and keep “dangerous radicals” from putting the wrong ideas into students’ heads. But the effect of this requirement is actually to put “powerful weapons in the hands of the political heresy hunters, a phrase that [the Montana] governor uses….” It concluded with the remark: “The state needs good teachers, not automatons.” (Leadville Herald Democrat, “A False Political Test” February 6, 1921.)

    Despite the Herald Democrat‘s misgivings, the bill sailed through the legislature. It was introduced in the Senate on January 13 and passed on third reading in the House on February 7 without amendment. On February 15, 1921, Governor Shoup signed it into law.

    In June, the Herald Democrat was still railing against it. “The truth is that these and kindred measures are after-war reactions, based on the theory that the country is full of radicalism, revolution and strange doctrine.” The article notes that in the most recent election, “radical parties were almost wiped off the slate” and argues that the real threat to “the structure of Americanism” is “the introduction of too much of the Prussian system of state worship…” (Leadville Herald Democrat, “The Oath of a Teacher” June 4, 1921.)

    That fall, the American Legion held its national convention in Kansas City from October 31 to November 2. The Routt County Sentinel reported the convention highlights, including a list of items included in the Legion’s platform. Among other issues, the American Legion included these planks:

    Education in citizenship is the keynote of Americanism.

    That American history and civil government be taught more thoroughly in our public schools.

    Favoring state laws requiring every teacher to take an oath of allegiance to uphold the constitution and the conciliation of certificates of those teachers found disloyal to the American government.

     (Routt County Sentinel, “High Lights on Legion’s National Convention” Nov. 25, 1921.)

    Based on the newspaper coverage, we can deduce that the teacher loyalty oath statute arose out of the support for “Americanism” that was engendered by World War I and the threat, real or perceived, of anti-American, anarchist, and possibly Communist elements in society. So starting in the fall of 1921 and each year thereafter, all new teachers and professors were required to solemnly swear or affirm:

    [T]hat I will support the constitution of the State of Colorado and of the United States of America and the laws of the State of Colorado and of the United States, and will teach, by precept and example, respect for the flags of the United States and of the State of Colorado, reverence for law and order and undivided allegiance to the government of one country, the United States of America.

    Until 1969, that is. That year, the General Assembly amended the oath to its current form:

    I solemnly (swear) (affirm) that I will uphold the constitution of the United States and the constitution of the state of Colorado, and I will faithfully perform the duties of the position upon which I am about to enter.

    Why the change? And why then?

    We’ll talk about that next week. Hint: The answers lie with the judicial branch.

  • Statutory Revision Committee: Looking Back, Looking Ahead

    by Kate Meyer

    As we informed you last year, the General Assembly recreated the Statutory Revision Committee (SRC) through legislation enacted in 2016. Generally, the SRC makes an ongoing examination of the Colorado Revised Statutes (C.R.S.) to discover and—via legislation—rectify defects and anachronisms in the law. The SRC recommenced meeting during the 2016 interim and has had a very productive year.

    2017 session
    In the 2017 legislative session, the SRC recommended for introduction 26 bills, all of which the General Assembly passed and the Governor signed into law.  By way of comparison, this figure falls within the range of bills previously recommended by the SRC’s predecessor entity (also known as the “Statutory Revision Committee,” this entity existed from 1977-1985), which annually recommended between 12 and 39 bills.

    The majority (i.e., 18 of the 26) of the SRC’s 2017 bills conformed existing reporting requirements with the language in section 24-1-136 (11)(a)(I), C.R.S., which imposes an automatic three-year repeal of reports to the General Assembly from executive branch agencies and the judicial branch. In consultation with the reporting entities and the Joint Budget Committee, the SRC bills aligned statutory reporting requirements with the automatic repeal. In some cases, the SRC bills repealed reports that were no longer necessary due to lack of funding, expired programs, lack of information to report, redundant information included in other reports, etc.

    Other SRC-sponsored bills:

    • Eliminated out-of-date and unintelligible descriptions of congressional and state House and Senate boundaries (HB17-1074 and HB17-1025, respectively);
    • Removed redundant sections in Title 25, C.R.S., that resulted from an incorrect technical amending clause contained in a 2016 bill (SB17-018);
    • Updated various obsolete and outdated laws relating to the state auditor’s office (HB17-1005);
    • Relocated the Commission on Family Medicine laws to a more appropriate title of the C.R.S. (HB17-1024);
    • Repealed an antiquated duty of the state treasurer and controller to physically post lists of all uncashed warrants and uncashed checks (SB17-046);
    • Rectified incorrect references in Title 22, C.R.S. (SB17-052); and
    • Corrected out-of-date references to American National Standards Institute standards for accessible housing (HB17-1067).

    Overall, more than 30 pages of statutory text were repealed or modernized through SRC-recommended legislation.

    Current committee composition and activity
    The committee consists of four legislators (two appointees from the majority and minority leaderships in each house) and two nonlegislator, nonvoting attorneys appointed by the Committee on Legal Services. The current appointees are: Senator Beth Martinez Humenik (Chair), Senator Dominick Moreno (Vice-Chair), Representative Jeni James Arndt, Representative Edie Hooton, Representative Dan Nordberg, Senator Jack Tate, Representative Dan Thurlow, Senator Rachel Zenzinger, Patrice Bernadette Collins, and Brad Ramming.

    The SRC met in June 2017 and requested staff to draft two bills: One to reorganize without substantive change the state sales tax exemption for certain drugs and medical and therapeutic devices; and one to repeal the odometer reading requirement for VIN verifications. The committee meets again on Monday, August 21, 2017, to decide whether to recommend those bills, which requires an affirmative vote from at least five of the legislative committee members, and to hear staff presentations on another 13 potential bills. The items slated to be addressed during the August 21 meeting encompass a wide breadth of subjects, including:

    • An apparent statutory conflict over whether deputy sheriffs must be certified by the Peace Officers’ Standards and Training (P.O.S.T.) Board;
    • Various laws held to be unconstitutional relating to sexually explicit materials harmful to children, same-sex marriage, interest on damages in § 13-21-101 (1), C.R.S., and per-signature pay of ballot issue petition circulators;
    • Antiquated or ambiguous terms, such as “pauper,” “husband and wife,” or “mother and father;” and, with respect to children, “legitimate/illegitimate;”
    • Unfunded department of human services programs; and
    • Outdated and inconsistent state officials’ bonds and oaths requirements.

    The bill drafts, memoranda, and assorted documents for the August 21 meeting are all available through this link: http://leg.colorado.gov/publications/meeting-agenda-statutory-revision-committee-20170821 and the audio from the meeting can be live-streamed here: http://leg.colorado.gov/committee/granicus/933566.

    The SRC expects to meet in October 2017 as well—date to be determined.

    Know of any antiquated, redundant, or contradictory laws? Please feel free to contact SRC staff via email: StatutoryRevision.ga@coleg.gov.

  • Pardon Our Dust: Interim Renovations at the Capitol

    by Darren Thornberry

    Imagine climbing this!

    The sine die gavel was still ringing in our ears when construction projects began anew this spring at the Colorado state capitol building. Much like the laws in our state, the building where those laws are made is itself a work in progress. Over the past two years, the interim (mid-May through late December) has seen tremendous restoration work completed in the people’s house. The Senate and House chambers and their magnificent chandeliers were restored to former glory, and the Senate committee rooms received a welcome face-lift.

    In 2017, the House committee rooms in the basement are undergoing a significant renovation and various ongoing projects are underway on the roof of the building. Kudos to the architects, engineers, construction workers, capitol staff, and everyone else involved in beautifying and restoring this grand old building. Stay safe out there!

    House Committee Rooms

    Keep out! (for now)

    Marilyn Eddins, Chief Clerk of the House of Representatives, recently gave LegiSource a sneak peek of the renovations happening in the basement committee rooms. “No more high school classrooms,” she said with a smile as we walked and talked about the updates underway on the ground floor.

    In the lobby of the committee rooms, where legislators, staff, and the public converge, brick and egg-and-dart crown molding that have not seen the light of day in decades have been uncovered by the construction crew. The crown molding will be on display once again upon completion of the renovation, and a portion of the brick might remain.

    Exposed brick and egg-and-dart crown moulding in the lobby.

    The tiny “Doc of the Day” room – 106 – is being repurposed as a small committee room with a table for 12. Room 107 is very exciting. Gone is the vertigo-inducing diagonal table. In its stead will be a straightforward, beautiful marble table. The St. Louis Antique Lighting Company, which restored the chandeliers in the House and Senate chambers, is custom-making two gorgeous lamps that will hearken back to those that hung in the room more than a hundred years ago. At that time, the room hosted a mining collection that boasted dozens of cabinets overflowing with stone and minerals including quartz, onyx, copper, silver, and gold (The Colorado State Capitol, Everett, p. 83). The renovation has already revealed an archway in Room 107 that once led outside the building. Hopefully, the room’s new look will showcase that unique architectural design after the renovation’s complete.

    The rediscovered archway

    On the left as you walk into the lobby, rooms 111 and 112 will be combined into one large room to mirror the design of matching senate conference rooms on the third floor. In 112, the renovations have revealed interior windows facing the lobby that were covered up long ago. There will be windows in this wall once again; however, they will be glazed so that light may pass but the inhabitants of the committee room won’t feel like zoo animals.

    Coming in 2018: Glazed windows in this spot!

    Finally, at the rear of the lobby, a double egress will now lead to a vestibule and another exit from the house committee rooms to the ground floor.

    Facing the rear of the lobby, where a new exit is being built

    On the Roof

    Lance Shepherd, manager of Capitol Complex Architects, provided his notes on what’s going on over our heads:

    “At the peaked ends of the roof, we are removing the tile roofing and replacing it with gray slate, which was the original roofing material. The asphalt shingle locations were originally slate, but due to the low slope the original slate failed. At these areas we are installing a zinc-coated copper to go with slate on the ends of the building. We are installing new skylights over the preserved original skylight frames.

    Toward Colfax and Lincoln

    “The scaffolding that has surrounded the building is for the gutter replacement. The gutters were originally lined with asbestos and copper. Over the years additional layers of material had been added as the gutters leaked. We are going back to the original look by removing the old gutter materials, abating the asbestos and installing new copper gutters.

    “The iron rain leaders for the roof were lined with a plastic pipe sometime in the past, reducing the capacity of the drains by 50 percent. We are removing the plastic pipes and lining the original rain leaders with fiberglass and returning the capacity to the original design.

    “The flag pole has been replaced with a new pole with detailing from the original drawings.

    “The original chimneys for the steam boiler and the bathroom vents were removed sometime in the past. We are recreating them from the original plans and old photographs.

    Hats off to the construction crew!

    “Beneath the roof, in the attic, we have been dealing with asbestos fibers that remained behind from an earlier project when asbestos was not a material of concern. Due to the disturbance on the roof from both removing old materials to adding new materials, the asbestos has been [treated with a sealant material to prevent the release of fibers].

    “We are currently scheduled to complete the project by February of next year, depending on the weather.”

    The replacement of many of the building’s exterior windows and granite cleanup could be blog posts in themselves, but it’s plain to see there’s a lot happening inside and outside of the state capitol. Of course, the public is still welcome to visit and tours are happening daily. Pardon our dust!

  • US Supreme Court Resolves a Playground Fight

    by Brita Darling

    In a recent LegiSource article, “Missouri Tires – Colorado Schools,” I described the nexus between the then-pending United States Supreme Court case Trinity Lutheran Church of Columbia, Inc. v. Pauley, concerning a “playground dispute” over scrap tire grants, and a Douglas County School District scholarship program that would provide public school funding for tuition at private religious schools. In that post I opined, along with interested persons filing hundreds, if not thousands, of pages of briefing in the case, that, with the Trinity Lutheran decision, the Court could reconsider its decision in Locke v. Davey, an important decision interpreting the Free Exercise Clause of the First Amendment to the United States Constitution. Some also suggested that the Court could use its decision in Trinity Lutheran to find Colorado’s so-called “Blaine Amendment” or “super-establishment clause” unconstitutional. Officially known as article IX, section 7 of the Colorado constitution, this provision prohibits the state from using public funds in aid of a church, or for a sectarian purpose, or to help support or sustain a church school. As it turns out, the Supreme Court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer,[1] doesn’t reconsider Locke v. Davey or even opine on the constitutionality of 26 states’ Blaine Amendments.

    The Trinity Lutheran decision     

    The Supreme Court’s June 26, 2017, 7-2 decision[2] reversed the Eighth Circuit Court of Appeals, holding that the State of Missouri cannot deny the otherwise-qualified Trinity Lutheran Church (church), simply because of its status as a church, the right to participate in the Missouri Scrap Tire Program, which provides reimbursement grants for pour-in-rubber playground resurfacing made from recycled scrap tires. Denying a neutral, generally available public benefit because of who the grantee is—a nonprofit, church-affiliated preschool program—rather than what the grant is used for—safe playground surface material for children—is not okay when the grantee is otherwise qualified under the neutral grant program criteria.

    The Supreme Court compared the Trinity Lutheran facts with the case of McDaniel v. Paty, involving the constitutionality of a Tennessee law disqualifying ministers from serving as delegates to the state’s constitutional convention. In that case, the Supreme Court held that the statute discriminated against McDaniel by denying him a benefit solely because of his “status as a minister,” thereby effectively penalizing the free exercise of his constitutional liberties. In the Trinity Lutheran case, the church would have had to expressly renounce its religious character or status as a church to participate in the grant program: “The rule [for the grant program] is simple:  No churches need apply.” The Court reaffirmed that laws that target religious persons or entities for “special disabilities” or on the basis of “religious status” are subject to the strictest scrutiny and can be justified only by a state interest “of the highest order”.

    But what about Missouri’s state constitution “no aid” provision?

    The Court then found that simply complying with a state constitutional provision, such as the Blaine Amendment, does not by itself constitute a state interest of the highest order. The Court held that Missouri’s preference for “skating as far as possible from religious establishment concerns” does not qualify as compelling. And the state’s ability to comply with its “super establishment clause” is limited by the federal Free Exercise Clause. The state’s pursuit of its preferred policy to the point of denying a qualified religious entity a public benefit solely because of its religious character “goes too far” for the Court and violates the Free Exercise Clause. That’s it. But what if the public benefit would do more than just prevent bloody knees?

    How broad is this ruling?

    The relatively “easy” (7-2) decision in the case was probably due to the specific facts of the case and the type of public benefit denied the church preschool. Justice Sotomayor, joined by Justice Ginsburg, argued in her dissent that this playground dispute was actually about whether Missouri could decline to fund “improvements to facilities the Church uses to practice and spread its religious views,” and whether the federal constitution requires a state to provide public money directly to a church. But several of the justices were not persuaded. They supported a simpler characterization of the legal issue: A case of improper, express religious identity discrimination that is not supported by a compelling state interest in a neutral grant program with a secular purpose.

    The opinion includes a very interesting footnote, which arguably limits the decision’s impact to the facts in the case. Footnote 3 states:

     3This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.

    Similarly, while agreeing with much of the majority’s opinion, Justice Breyer concurred in the judgment only, emphasizing the “particular nature” of the public benefit at issue. He noted that “public benefits come in many shapes and sizes,” and saw denying a grant to the church under a program designed to make playgrounds safer as akin to denying police or fire protection for church schools, which the Court has previously held is “obviously not the purpose of the First Amendment.”  As to the reach of the Court’s decision, Justice Breyer “would leave the application of the Free Exercise Clause to other kinds of public benefits for another day,” apparently echoing the sentiment of the justices who support footnote 3.

    Notably Chief Justice Roberts, who wrote the opinion for the court, and Justices Thomas and Gorsuch do not support footnote 3.

    So what does this mean for Colorado?

    As you may recall, last spring the U.S. Supreme Court heard oral arguments in the Colorado case, Taxpayers for Public Education v. Douglas County School District, in which the Colorado Supreme Court relied on Colorado’s Blaine Amendment to strike down the Douglas County scholarship program that allowed public school funding to flow to religious schools. Following its opinion in Trinity Lutheran, the Supreme Court vacated the Douglas County decision and instructed the Colorado Supreme Court to reconsider Douglas County’s scholarship program in light of the Trinity Lutheran decision.

    How will the Colorado justices decide? Stay tuned for Part III in LegiSource. All I know for sure is that within days after the Trinity Lutheran decision, people on both sides of the school voucher debate were writing about the case’s potential impact, or lack thereof, on school voucher programs. Despite the opportunity to do so, the Court did not declare Missouri’s Blaine Amendment unconstitutional. In fact, Blaine Amendments were not even mentioned in the majority’s 15-page opinion. However, it’s safe to say that in the Douglas County case, the Colorado Supreme Court will have to wrestle with issues of status and use and ensure that any impediment to the free exercise of religion is supported by a state interest of the “highest order,” which, based on the Trinity Lutheran decision, would appear to require something more than a simple commitment to complying with Colorado’s Blaine Amendment.

    [1] Appeal was granted under the case name Trinity Lutheran Church of Columbia, Inc. v. Pauley. The case name was changed to Comer during the pendency of appeal when the new director of the Missouri Department of Natural Resources was appointed.  

    [2] Justice Roberts delivered the opinion of the Court, except as to footnote 3; Justice Thomas, with whom Justice Gorsuch joined, concurred in part; Justice Gorsuch, with whom Justice Thomas joined, concurred in part; Justice Breyer, concurred in the judgment; and Justice Sotomayer, with whom Justice Ginsburg joined, dissented.

  • Change in Leadership for OLLS

    After 28 years working for the Colorado General Assembly, Dan Cartin has left the building. This past Tuesday, he quietly said goodbye to his friends in the OLLS and headed into retirement. But it’s not what most of us would consider retirement—starting this fall, Dan will teach eighth grade social studies for a private K-8 school in Denver and will serve as the school’s athletic director.

    Dan started with the OLLS in 1989 as a staff attorney, drafting bills in the areas of education, taxation, and state and local government. During the next 10 years, he developed expertise in the areas of elections, campaign finance, and state personnel law; his skills as a drafter were in high demand.

    Dan was also dedicated to customer service. As a drafter, he reached out during the interim to each of the legislators he had worked with during the preceding session, and sometimes, after working together, legislators requested Dan to draft all of their bills.

    In 1999, Dan was promoted to management. He became team leader of the Government team, overseeing seven attorneys and four legislative editors. His team drafted in the areas of tax policy, state and local government, transportation, elections, appropriations, and capital development, among other things. Dan was a strong advocate for his team and an excellent mentor, and he worked to build a robust esprit de corps.

    In 2004, Dan was promoted to deputy director, and after five years in the deputy position, the Executive Committee appointed Dan to serve as director of the OLLS.

    As director for the last seven years, Dan has been an excellent and trusted advisor to legislators. And under his leadership, the OLLS has maintained and even improved its reputation for excellent service to the General Assembly.

    Dan was a strong leader within the office, committed to his employees’ growth and success. He created an office advisory board to provide greater leadership opportunities for OLLS employees in setting office policies and implementing new ideas. He enthusiastically supported the creation and development of the LegiSource. And he was a strong advocate for professional development opportunities for employees.

    Dan considered his greatest challenge as director to be ensuring everyone in the OLLS had opportunities to grow professionally and gain added responsibilities. Dan’s success in this area is clear: Of the 25 attorneys employed in the OLLS, only two have been with the office fewer than five years; only four have been with the office fewer than 10 years.

    But Dan was always first and foremost a legislative attorney. He considered it a treat when, as director, he had the opportunity to write a legal opinion or contribute to a bill draft. His top priority, both as drafter and director, was strengthening and preserving the institution of the General Assembly. To that end, he was constantly aware of protecting the nonpartisan reputation of the office, avoiding situations and actions that could create even the perception of partisanship.

    In 1996, Dan assisted former Director Doug Brown in developing the OLLS’s position statement identifying the institution of the General Assembly as our client. While it may not sound impressive, it is this position that guides attorneys in the office in providing advice to legislators and in avoiding the innumerable conflicts of interest that could arise if we were not clear and sure as to whom we represent. Over the past 20 years, several legal legislative staff agencies around the country have reviewed this position and adopted the approach of serving their state legislatures as an organizational client.

    Dan’s colleagues in the office and legislators and colleagues outside the office will greatly miss his legal skills, experience, steadiness, easy camaraderie, and thoughtful advice.

    Good luck with those eighth graders, Dan—they don’t know how lucky they are!

  • Interim Committees: Just the Facts, Ma’am

    by Jery Payne

    Duuuh-d’duh-duh. Duuuuh-d’duh-duh duuuuuuuuhhhh.

    This is bill drafter Jery Payne. The blog you are about to read is true with regard to the rules, requirements, and procedures for interim committees. Only the name has been changed to protect…..we’re not sure what.

    Image via IMDB.com

    January 2017: The General Assembly receives several reports of rampant cheating on eye exams occurring throughout the state. April 2017:  The executive committee approves a request for the Interim Committee on Cheating on Eye Exams.* As it turns out, this area is just too complicated to address without a whole lot of study. Who knew? Now that it’s the interim, it’s time to delve into this tough issue.

    Before we go too far, let’s check the files. An interim study committee is created by action of the General Assembly to study a particular issue and, in most cases, recommend legislation to address the issue. Any legislation that an interim committee recommends must be approved by the Legislative Council before it can be introduced in the legislative session. The Legislative Council reviews these bills to ensure that they fit within the interim committee’s study description.

    According to Joint Rule 24A, the Speaker of the House of Representatives appoints the committee chair and the President of the Senate appoints the vice chair when the interim study committee request originates in the house and vice versa when the request originates in the senate. Either way, the chair gets appointed. Next question: membership.

    The committee needs legislative members who are willing to take the time to figure out the causes of and solutions to eye exam cheating. The interim committee request should have specified who appoints those members. Typically, committee members are appointed by the senate president, the house speaker, and the minority leaders of both chambers. So watch for those appointments.

    Sometimes, an interim committee includes a member or two who aren’t legislators. For example, an optometrist may provide some expertise, and a psychologist may help the committee understand why people would cheat on an eye exam. But non-legislative members are not authorized to request a bill or vote on a bill.

    With the chairmanship and membership all set, it’s time the committee holds some meetings.

    The first thing most chairs do is call on legislative council staff to help schedule the committee meetings. The interim committee request should have said how many meetings to hold. If not, Joint Rule 24A (d) (2) limits interim committees to no more than six meetings.

    An interim committee usually holds its first meeting in late July or early August. This may seem early, but it can be hard to find meeting dates that work for everyone. However, new policies recently adopted by the Executive Committee of the Legislative Council pursuant to House Bill 17-1113 may make attendance a little easier. On limited bases beginning August 1, those policies will allow members of certain interim committees to electronically participate by “phoning in” to a meeting via remote testimony technology. This year, the committee has until September 22 to request bill drafts. That means it has to hold all its meetings (except for the last two) by September 22. Assuming the committee meets six times, it will probably want to meet at least four times before September 22. If the committee holds its first meeting on August 1, that’s about one meeting every other week.

    Now that the first meeting is set, Joint Rule 24A requires the committee to schedule:

    • The meeting at which the committee will vote to prepare draft bills—this meeting must be held at least 42 days before the committee takes its final vote on the bill drafts and no later than September 22, 2017.
    • The deadline for bill drafts to be finalized for the committee to vote on—this date must occur at least 21 days before the committee’s final vote meeting on the draft bills. This year, this deadline must be no later than October 13, 2017.
    • The meeting at which the committee will take its final vote on draft bills—this year, this meeting must be held no later than November 3, 2017.

    Under Joint Rule 24A (d)(7), the committee chair must set the dates for these meetings as soon as possible after the first committee meeting.

    In addition to helping schedule meetings, committee staff assists chairs in setting and posting the meeting agendas and may help identify individuals or groups to invite to present information to the committee.

    A committee may want to travel for research or a meeting—word on the street is Colorado’s optometric association has a conference in Vail this summer. But the committee has to get permission before it hits the road. All committee travel expenses are subject to the Executive Committee’s approval.

    Like the meetings of a standing committee of reference during the legislative session, interim committee meetings are open to the public, and people can find links to committee schedules and agendas and recordings of meetings online.

    So, the committee’s met, done a couple of deep dives into optometry, and ferreted out the policy levers to prevent cheating on eye exams. Let’s draft some bills!

    Having studied the issues, the committee has ideas for bills, such as randomly generated eye charts or intensive study or tutoring programs. At the committee’s request, the Office of Legislative Legal Services (OLLS) prepares the bill drafts. A committee member must have drafting information available at the meeting at which the member requests a bill or must submit drafting information to the OLLS drafter within three calendar days after the meeting. According to Joint Rule 24A (2.6), failure to timely submit drafting information may cause the bill request to be deemed withdrawn.

    According to Joint Rule 24A (d) (2.7) (A), an interim committee may request bill drafts only at a single meeting. Normally, an interim committee may recommend to the Executive Committee up to five bills for introduction at the next legislative session, unless the interim study request sets a different number.

    If a bill sponsor fails to finalize a bill draft by the date specified by the committee chair, the bill draft is deemed finalized and authorized for release to work up a fiscal note. And once a bill draft is finalized, a legislator may not modify the bill draft. At that point, a legislator can make changes to the bill draft only by amendment when the committee considers the draft.

    Bill requests must be approved by a majority of the legislative committee members. Once approved, it is time to assign a prime sponsor. The committee must do this before the Legislative Council will consider the bill. Usually interim study committee bills are sponsored by a member of the committee, but legislators who are not committee members can, with the approval of the committee, sponsor interim committee bills.

    Joint Rule 24 requires that Legislative Council meet to approve interim committee bills no later than November 15 in odd-numbered years and no later than October 15 in even-numbered years. The interim committee chair will present committee-approved bills to the Legislative Council at that meeting.

    A committee bill that the Legislative Council approves for introduction does not count against a bill sponsor’s five-bill limit (see Joint Rule 24 (b) (1) (D)). So committee members can still carry five other bills while helping people get the right prescription eyeglasses.

    Tune in to future episodes of LegiSource for an overview of the interim committees that were approved for 2017 and the bills they recommend.

    *This is the name that was changed, in case you were wondering.

     

    Correction made 7-24-17: This article has been corrected to reflect legislation passed during the 2017 session and rules recently adopted by the Executive Committee allowing legislators to remotely participate in interim committee meetings on a limited basis.

  • Maximizing the Interim: How OLLS Staff Can Help Legislators

    by Debbie Haskins

    Legislators, especially those serving in their first legislative session, often comment that they wish they had more time to work on their bills.  They sometimes learn the hard way that failure to engage in robust stakeholder processes leads to bills that are difficult to pass. Sometimes it takes multiple bill drafts before all sides feel that the concerns they represent are adequately addressed. While the interim is a good time for legislators to take a well-deserved break from the hectic pace of the previous legislative session, many also find that the interim is a great opportunity to prepare for the upcoming legislative session.

    During the interim, legislative staff in the Office of Legislative Legal Services (OLLS) can assist legislators in the following ways:

    • Researching what other states do to combat a particular problem the legislator is interested in addressing via legislation;
    • Researching prior legislative efforts in Colorado to address a particular issue;
    • Researching legal issues that arise in proposed legislation;
    • Facilitating discussions or participating in stakeholder meetings that bring a wide variety of parties together to discuss how to address particular issues; and
    • Drafting and redrafting bills.

    Legislators may ask an OLLS attorney to attend drafting meetings or stakeholder meetings that are held at the State Capitol Building or in the Capitol Complex. While OLLS cannot attend meetings with or on behalf of a legislator outside of the Capitol Complex, OLLS attorneys can communicate by e-mail, telephone, or conference call with legislators who are not able to travel to the Capitol Complex.

    In addition, OLLS staff provides legal research and bill drafting for interim committees and committees that meet year-round, such as the Capital Development Committee, Colorado Commission on Uniform State Laws, Committee on Legal Services, Joint Technology Committee, and Statutory Revision Committee.

    If you are a new legislator—or even if you have a couple of sessions under your belt—you may want to use the interim to brush up on the legislative procedures or learn more about a particular subject area. The OLLS staff are available to help in these areas, as well. Staff attorneys are happy to provide one-on-one review sessions of the legislative rules or to help you drill down in understanding Colorado’s laws on a particular subject.  Also, each interim, the OLLS provides in-house continuing legal education (CLE) programs. Legislators, especially those who are attorneys, are welcome to attend. Contact Julie Pelegrin or Brita Darling to receive notice of these programs.  For more information on all of the OLLS’s interim activities, click here.

    Nonpartisan legislative staff at the OLLS are here to help legislators maximize their interim. Let us help you get a jump start on the 2018 legislative session.