Colorado LegiSource

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

Author: olls

  • Title 12 Recodification Continues Apace

    Editor’s note: We’re out of hiatus a week early! LegiSource has enjoyed a rest, but some things just can’t wait…

    by Kate Meyer

    There’s an old saying about law school that most students learn: In the first year, they scare you to death. In the second year, they work you to death. And in the third year, they bore you to death.

    I’ve been thinking lately about how to adapt that adage to the Title 12 recodification project. So far, I think the saying is apt as concerns the first and second years. In 2016, the first year of the Title 12 effort, folks didn’t quite know what to expect with such a massive undertaking and exhibited a combination of curiosity and trepidation about how it would unfold. In 2017, the project got a big boost when the Committee on Legal Services approved 15 separate bills relating to the effort (perhaps leaving sponsoring legislators and staff feeling “worked to death”). It’s the third year where the similarities stop; as Title 12 now enters its crucial and exciting third year, I think those involved will be anything but bored.

    Recap. The recodification of Title 12 (“Professions and Occupations”) officially commenced in 2016, with the passage of House Bill 16-163. For a refresher on that bill and a general overview of the project, click here.

    During the 2017 legislative session, the General Assembly made great strides,  better positioning the Title 12 recodification effort as it enters the final phase:

    • House Bill 17-1006 authorized administrative agencies to change statutory citations contained in rules published in the Colorado Code of Regulations through a simplified process. This avoids the need for agencies to conduct formal notice-and-comment rulemakings simply to update citations that are made obsolete by recodifying Title 12 and other relocations and will save a great deal of time and expense that would otherwise result from the renumbering caused by relocation.
    • Fourteen stand-alone bills slimmed down Title 12 by relocating 21 articles that have nothing to do with professions and occupations regulated by the Department of Regulatory Agencies (“DORA”) to more appropriate locations in the Colorado Revised Statutes (“C.R.S.”). The relocated laws affect everything from cemeteries to dance halls. With these provisions out of the way (resulting in about 270 fewer pages of statutory text in Title 12!), less work remains and there is little to distract from the more substantive, nuanced, and complicated aspects of recodifying Title 12.

    What’s in store now? Although much progress has been made, the real crux of the Title 12 recodification will occur in this, its third year. In particular, efforts will continue to identify more appropriate statutory locations for many current laws, and the reorganization of the remainder of Title 12 into a more coherent whole will commence. Specific activity will include:

    • Continuing the Title 12 exodus: A number of articles remain in Title 12 that will be moved (as with the 2017 session bills, in a nonsubstantive fashion) to more appropriate locations in the C.R.S., including laws about firearms dealers, background checks at gun shows, and advance parental notification of an unemancipated minor’s abortion.
    • Making recodification a two-way street: Although most of the recodification activity to date has seen Title 12 lose laws, it may actually gain some laws—DORA’s organizational statutes, laws related to passenger tramway safety, etc.—during this next phase of the project.
    • Creating a new Title 44: Other soon-to-be-orphaned Title 12 laws will be moved into a new title: Title 44, C.R.S. These laws concern areas in which the Department of Revenue has regulatory authority: Automobiles, medical and retail marijuana, alcoholic and fermented malt beverages, liquors special event permits, gaming, and racing.
    • Cleaning up what’s left: The rest of Title 12, which concerns DORA, will be divided into sections governing that department’s Real Estate Division and the Division of Professions and Occupations. Redundant provisions will be identified and combined into “common provisions” sections (i.e., single sections of general applicability that contain provisions setting forth for example, definitions or administrative procedures), which will further reduce the size of the title.

    Ultimately, the Committee on Legal Services must decide by December 31, 2017, whether to approve the additional Title 12 recodification bill(s). Any bill(s) recommended will be introduced in the 2018 legislative session.

    How can I be involved? The staff of the Office of Legislative Legal Services strives to make the Title 12 recodification process as inclusive, transparent, and thoughtful as possible. To that end, we will once again conduct public meetings during the interim to solicit feedback on the recodification from stakeholders and other interested persons. Meeting announcements will be posted here, and all are welcome and encouraged to attend. In fact, we’ve already scheduled two discussions on the relocation of Article 6 of Title 12, which pertains to automobiles, for Friday, July 7th at 2 p.m. and Tuesday, July 11th, at 2 p.m. The meetings will be held at the Capitol in SCR 354.

    Additional resources:

    • To sign up for the Title 12 mailing list, please click here.
    • The Title 12 staff will keep the Committee on Legal Services apprised of the project’s progress. You can access agendas, meeting minutes, and audio for meetings here.

    If you have questions or concerns, please contact Christy Chase or Tom Morris.

  • Colorado LegiSource is on Hiatus

    The Colorado LegiSource will be taking a break for the next several weeks. We expect to resume weekly postings on July 6. In the meantime, if you have questions you would like answered or issues you would like to see discussed on the Colorado LegiSource, please contact us using our feedback form.

  • First Regular Session of the 71st General Assembly Out *Gavel Drop*

    by Julie Pelegrin

    Last night—May 10, 2017—at 9:29 p.m. in the Senate and 9:39 p.m. in the House, Senate President Kevin Grantham and Speaker of the House Crisanta Duran, respectively, dropped the gavel on the first regular session of the 71st General Assembly. With this legislative session, the General Assembly negotiated resolutions to several long-standing issues, including how to address construction defects, the status of the hospital provider fee, and whether school districts must distribute a portion of their local tax dollars to the charter schools of the district.

    During the 120 days since opening day in January, the House introduced 375 bills and the Senate introduced 306. Both houses also introduced a total of three concurrent resolutions (to amend the constitution), nine joint memorials (to memorialize previous legislators who recently passed away or ask Congress to consider a particular issue), and 80 joint resolutions (to address or comment on a variety of issues).

    Overall this year, the General Assembly passed 423 bills—a passage rate of about 62%. The Governor has already signed 206 of those bills and vetoed one: S.B.17-139, concerning the extension of the credit for tobacco products that a distributor ships or transports to an out-of-state consumer. He has until June 9th to act on the remaining 216 bills or, at 12:01 a.m. on June 10th, they will become law without his signature.

    Although it took longer than usual, the General Assembly passed the bills it is required to pass each year: The general appropriations, or “long,” bill (S.B.17-254) and the school finance bill (S.B.17-296). The long bill was finally passed on May 3. It authorizes spending $28.7 billion (state general fund, cash funds, and federal funds) for the expenses of the executive and judicial branches of the state. The school finance bill, which sets the amount of statewide base per pupil spending each year and the amount of the negative factor (to be known going forward as the “budget stabilization factor”), finally passed on May 10, the last day of the session. For the 2017-18 school year, on average, schools will receive $7,662 per student in state and local money, an increase of $242 over the 2016-17 school year. The Governor has not yet signed this year’s long bill or school finance bill.

    Despite the fact that the houses were controlled by different parties, the General Assembly managed to negotiate to common ground on many issues this year:

    • Putting some limits on construction defects lawsuits (H.B.17-1279);
    • Establishing the hospital provider fee as an enterprise (S.B.17-267), one benefit of which is helping rural hospitals to continue operating;
    • Reducing the constitutional cap on state spending by $200 million (S.B.17-267);
    • Increasing the sales tax rate on recreational marijuana to 15%, and using $30 million of the revenue for rural school districts in 2017-18 and all school districts and institute charter schools starting in 2018-19 (S.B.17-267); and
    • Requiring school districts to equitably distribute the local property tax money they collect to benefit the students enrolled in all of the schools of the school district, including charter schools and innovation schools authorized by the district, and requiring each school district and charter school to post on its website a list of the statutes for which it has received a waiver and the plan for meeting the intent of the waived statute. (H.B.17-1375).

    That’s not to say that all issues were resolved. Despite best efforts in the last hours of the session, the houses were not able to agree on what limits to impose on the social use of marijuana, they could not agree on several changes to the duties of the Colorado Energy Office, and they did not agree on significant increases in transportation funding. Any or all of these issues are likely to make a return appearance in the 2018 regular legislative session….if not before in a special legislative session.

    They did pass the joint resolution that sets the start date for the 2018 legislative session: January 10, 2018. Mark your calendars!

    Between now and then, several interim study committees will meet, including committees to study school finance, opioid addiction, supporting young and beginning farmers, comprehensive sentencing reform, and county courthouse and jail funding and overcrowding solutions.

     

    * A gavel drop is similar to a mic drop, but it carries much more authority.

     

  • U.S. Supreme Court Orders Colorado to Repay Criminal Fines

    by Jeremiah Barry

    The United States Supreme Court recently issued an opinion in the case of Nelson v. Colorado, holding that Colorado’s statute for awarding compensation to certain exonerated persons is unconstitutional because it violates due process under the Fourteenth Amendment to the U.S. Constitution. But in reviewing the case carefully, it appears that, while the statute is unconstitutional with regard to the procedure for refunding costs, fees, and restitution paid by defendants whose convictions are later vacated or reversed, the statute is arguably constitutional with regard to providing compensation to these persons for the time during which they were incarcerated.

    In 2013, the General Assembly passed House Bill 13-1230, which created the statutes that the courts refer to as the Exoneration Act.  Basically, the act says that, if a person is convicted of a crime and serves part of his or her prison sentence, and the person’s conviction is later overturned or vacated and the person is released, the person may be eligible for compensation from the state—$70,000 per year or more—for the number of years he or she was in prison and more for time spent on parole. But to get the compensation, the person must file a new civil action against the state claiming that he or she is entitled to compensation and prove by clear and convincing evidence that he or she was actually innocent of the crime. The act specifically says that “compensation” includes a refund of any costs, fees, or restitution paid.

    Shannon Nelson was originally convicted of five counts of sexual assault, sentenced to the department of corrections, and ordered to pay $8,192.50 in restitution and costs. While incarcerated, she had $702.10 withheld from her inmate account as payment toward these restitution and costs. However, her conviction was subsequently reversed on appeal, and, on retrial, she was acquitted of all charges. Nelson moved the trial court for a refund of the money that was withheld while she was incarcerated. The trial court held that it had no authority to order a refund and denied the motion. Nelson did not bring a separate civil action for compensation under the Exoneration Act.

    After Nelson appealed the trial court’s ruling, the Colorado Court of Appeals found that, because the payments were not related to a valid conviction, the state did not have the authority to collect Nelson’s money and ordered the state to issue a refund. The state appealed that ruling.

    The Colorado Supreme Court granted certiorari and held that, without statutory authorization, a trial court lacks the authority to order the state to refund money collected from a defendant who is later acquitted. The Court ruled that the only way a defendant can receive a refund of costs, fees, and restitution is to file a civil suit for compensation under the Exoneration Act. Since Nelson did not do that, the Court denied her claim for a refund of costs, fees, and restitution.

    Nelson appealed the Colorado Supreme Court’s ruling to the U.S. Supreme Court. On April 19, 2017, the Court found that the act does not meet the requirements of due process under the Fourteenth Amendment with regard to a refund of costs, fees, and restitution. The Court held that, once Nelson’s conviction was reversed on appeal, and especially after she was acquitted, she was presumed innocent. Colorado cannot require her prove her innocence in order to receive a refund of costs, fees, and restitution paid. Requiring her to prove her innocence by clear and convincing evidence creates an unacceptable risk of erroneous deprivation of property. The Court remanded the case, and Colorado must repay the amount of costs, fees, and restitution that Nelson paid.

    While this case was pending before the U.S. Supreme Court, the General Assembly enacted House Bill 17-1071, which establishes a new procedure for a defendant whose conviction is overturned to petition for a refund of any costs, fees, and restitution that he or she paid. Under this new process, the defendant is not required to prove innocence.

    The U.S. Supreme Court’s decision in Nelson v. Colorado does not mean that the entire Exoneration Act passed in 2013 is unconstitutional; the Court ruled on the constitutionality of the statute only with regard to a refund of costs, fees, and restitution. It did not consider whether Colorado can constitutionally require a person to prove his or her innocence in order to receive compensation for time spent in prison.  The difference lies in the word “property.”

    When a person pays costs, fees, and restitution, the person is obviously giving his or her property—money—to the state. To get that property back, the Supreme Court has said the person should not have to prove innocence because once the conviction is overturned, the person is presumed to be innocent.

    But the state is not constitutionally required to compensate a person who is wrongfully convicted for the time that the person spends in prison; compensation is not a person’s property that the state cannot take away without due process. A person’s conviction may be vacated or overturned for a number of reasons, not just because the person was actually innocent. So, if the state makes a policy decision to compensate persons who are wrongfully committed, it can, presumably, require the person to prove his or her innocence in order to receive the compensation.

    With the passage of H.B.17-1071 to recover a refund of costs, fees, and restitution, it appears the Exoneration Act remains constitutional.

  • Reducing Conflicts Over Conflicts (of Interest)

    by Bob Lackner

    As with many legislatures, the Colorado General Assembly prides itself on being a “citizen legislature,” which means it is comprised of citizens who take leave from their normal jobs and other duties every January to come to the State Capitol for 120 days to legislate for the people of the state. Not only is it presumed that legislators will continue to serve as teachers, farmers, ranchers, realtors, attorneys, and the like while serving in office, but this ability to bring the perspective, skill sets, and knowledge derived from working in these other fields to the job of being a legislator is seen as advantageous to representative democracy and desirable in a person who wants to serve as a legislator.

    However, the necessity of serving “competing masters” means a certain amount of tension between legislators’ private lives and public responsibilities is built into the DNA of our citizen legislature. The law does not require that a member of the Colorado General Assembly sell all assets, renounce all worldly employment, and commit to a monastic existence when serving in the legislature (although it may seem that way to many legislators).  But the law does expect and require that when a legislator’s independence and objectivity may be compromised, the legislator will put the public interest first.

    The term “conflict of interest” generally means a legislator has a personal interest in some aspect of official action (most often a vote on a bill) sufficient to influence the objective exercise of his or her public responsibilities. Stated differently, the legislator’s personal interest pulls him or her in one direction while the public interest pulls the legislator in another direction. In this context, as codified in statute and legislative rule, “personal interest” generally refers to a financial interest in a bill or other measure. The legislator’s obligations as a public servant are supposed to trump any personal or financial interest he or she may have in a public matter.

    How does a legislator know if he or she has a conflict of interest? The key to answering this question is to determine whether the situation at hand is likely to interfere or appear to interfere with the independent judgment the legislator is supposed to demonstrate as a public servant undertaking his or her official duties. One test is the so-called trust test. Specifically, would the public trust the legislator’s judgment if they knew the legislator was in this situation?

    The Code of Ethics within the statutory standards of conduct—and specifically the ethical principles for members of the General Assembly—provide three criteria for a legislator to consider in determining whether he or she has a personal or private interest in a matter before the General Assembly:

    1. Whether the interest impedes the legislator’s independence of judgment;
    2. The effect of the legislator’s participation on public confidence in the integrity of the General Assembly; and
    3. Whether the legislator’s participation is likely to have a significant effect on the outcome of the vote.

    The ethical principles also declare that a conflict of interest situation does not arise from legislation that affects the entire membership of a class. This exception is very important and regularly applied in assessing potential conflict of interest situations. This so-called “class exception” allows teachers to vote on education bills, attorneys to vote on tort reform bills, farmers and ranchers to vote on water bills, and so forth. There is no magic number to determine whether a class is present.

    Members of the General Assembly are also subject to Joint Rule 42. Similar to the class exception, this rule requires the legislator to decide whether the passage of a bill will benefit the legislator personally in a way not shared by others in the legislator’s profession, occupation, industry, or region. If it will, then the legislator probably has a personal or private interest in the matter necessitating disclosure and abstention.

    What if a legislator concludes that he or she does have a personal or private (i.e., financial) interest in legislation? Under the state constitution and the House and Senate rules (HR 21 (c) and SR 17 (c), respectively), the legislator must disclose the fact and abstain from voting on the bill. What should a legislator do if he or she has a conflict? A legislator who thinks he or she may be in a conflict of interest situation, or too close for comfort, should follow one or more of the following courses of action:

      1. Disclose the nature of the personal interest in the bill and abstain from voting. If there is a real conflict—i.e., a personal or private interest in the bill—under the law, the legislator is absolutely required to disclose the conflict and abstain from voting on the matter. But remember, constituents send legislators to the legislature to represent their interests and vote, especially on tough questions. Don’t allow abstention to become a way to evade tough votes.
      2. Talk the matter over with more experienced colleagues, especially in party legislative leadership. Sometimes it takes a third person’s perspective to really understand a difficult ethical situation.
      3. Be conscious of the appearance of impropriety. Although maintaining a proper appearance may not be strictly required, legislators need to be conscious of how their actions will affect their personal reputations and the reputation of the General Assembly.
      4. Seek the advice of legal counsel, whether from the OLLS or a privately retained attorney.
      5. Consider seeking an advisory opinion from the Board of Ethics of the General Assembly.
      6. Consider reducing involvement on a particular matter. Although a legislator may vote on a bill, there may be appearance concerns with being a prime sponsor of the bill or otherwise serving as the “public face” of the bill.
      7. Finally, be prepared to defend a decision. More often than not, the public will respect an ethical decision honestly and thoughtfully arrived at if the legislator can clearly and credibly explain the basis for the decision.*

    The Office of Legislative Legal Services regularly consults with members of the General Assembly on how to avoid conflict of interest situations. If you are a legislator, we are happy to help you work through any conflict of interest situation in which you may be involved, especially before it becomes a problem. Please come see us!

    *Item 7 in the list of recommended actions was originally published in the July/August 2004 State Legislatures Magazine in an article entitled “How to deal with Conflicts of Interest”, by Peggy Kerns.

  • Does My Bill Really Enact a Compact?

    By Thomas Morris

    Drafters are often given a draft bill that purports to be a compact — sometimes called an interstate compact. However, in at least some instances, it is not a compact — it is a model law that the proponents wish to invest with the gravitas of a compact. They are very different things that need to be treated very differently.

    Compacts

    The states’ ability to bind themselves to a compact is governed by Article I, Section 10 of the United States Constitution:

    No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. (emphasis added)

    A good example of a compact is the Colorado River Compact, which is codified in article 61 of title 37, C.R.S. This compact was entered into by the states of Arizona, California, Colorado, New Mexico, Nevada, Utah, and Wyoming and was approved by Congress. It apportions the water of the Colorado River among the seven states. The statute codifying the compact quotes the compact in its entirety, including the provision indicating that it becomes effective only after at least six of the compacting states’ legislatures approve it and the listing of the signatures of the compacting states’ authorized representatives.

    A fully executed compact is, simultaneously, three things (usually):

    1. A contract between at least two states, typically negotiated by designees of the governors or other official representatives of the compacting states (not a private organization). If a compact is violated, the compacting states’ exclusive litigation remedy is to sue each other directly in the United States Supreme Court. Individuals have no standing to enforce a compact unless the compact explicitly or impliedly provides a private right of action.
    2. A state law enacted by the contracting states’ legislatures. Because a compact is a contract, and a contract cannot be unilaterally modified by any of the contracting parties, if the bill is actually a compact, it needs to be enacted without any unauthorized changes. Look at, e.g., most of the parts in article 60 of title 24, C.R.S., where most compacts (other than with regard to water) are codified. Typically there is a C.R.S. section that states a short title (“‘This part 16 is known as the Interstate Corrections Compact’”) and another C.R.S. section that reproduces the compact as is—warts and all. There should be either a direction to the governor or a designee to enter into the compact or a portion of the compact that includes the signatures of, or other acknowledgement of execution by, the compacting states. However, sometimes a compact will specify that it becomes effective if it is enacted in “substantially” identical form by the compacting states’ legislatures. This allows the General Assembly to amend the compact, but it is unclear when the “substantially identical” standard would be violated.
    3. A federal law. A compact that increases the power of states at the expense of the federal government cannot take effect under the federal constitution unless Congress approves it. This element is not required if the compact does not increase the states’ power by encroaching on federal authority, as determined by the United States Supreme Court in the case of Virginia v. Tennessee, 148 U.S. 503.

    A prominent example of a compact between states that Congress did not approve is the 1861 Constitution of the Confederate States of America. With this example, one can see why the Founders were concerned about the states entering into at least some types of agreements among themselves.

    Model Laws and Uniform Laws

    In contrast, at least some of the documents given to drafters that purport to be compacts are really just model laws. There has been no contract between the states nor any plan to enter into one. The proponents are organizations or individuals that would benefit from having similar laws in various states, not the states themselves. The laws are enforceable by parties other than the enacting states. The laws are enacted only in more or less similar form. And there has been no approval by Congress nor any plan to get it.

    Compacts are distinct from both uniform acts, which have been proposed by the Uniform Law Commission and approved by the American Bar Association, and model laws, which are produced by non-governmental bodies of legal experts. While some of the legal results are the same – state law is identical or virtually so in more than one state – the subject matter of the two types of laws (model and uniform laws versus compacts) fundamentally differs and the process of formulating and enacting the two types of laws is usually also quite distinct.

    So it is incumbent on the drafter to figure out, precisely, what he or she has been given before the bill can be finalized. If it’s truly intended to be a compact, even if the other two elements – contract and congressional approval – are not yet in place, it should generally be codified as a new part in article 60 of title 24. And unless it specifies that it can be amended, so long as it is enacted in substantially the same form by all the compacting states, the document should not be altered in any way, including by amendment. If this is the case, the drafter and contact people should make that very clear to the bill sponsor and any other legislator who may try to amend it.

    If the document is really just a model law, it should not be codified as a part in article 60 of title 24, and the bill sponsor or any other legislator may make any changes they choose. But please don’t call it a compact!

  • The Rise and Fall of 1,100 Cubic Feet of Old Files

    by Debbie Haskins

    A few years ago, the Office of Legislative Legal Services (OLLS) came to the startling conclusion that we might be the unlucky stars in a disturbing episode of “Hoarders.” We had boxes of files piled up and overflowing the OLLS’ territory in the Capitol sub-basement. We required employees to go downstairs in pairs to ensure no one was lost in an avalanche.

    What were these files? Where did they come from? And how did we end up with so many?

    Legislators might not realize it, but every time a legislator asks an attorney in the Office of Legislative Legal Services (OLLS) to draft a bill or write an amendment, the attorney creates a drafting file for that legislator. These drafting files include background documents, research materials, and drafts of bills, resolutions, and amendments, some of which are never introduced. The bulk of the materials in the OLLS drafting files are bill drafts and redrafts, including handwritten notes by the OLLS editors and attorneys about proofreading corrections, word choice, and grammar.

    In 1993, the Executive Committee (the leadership of the General Assembly) adopted a records retention policy that required the OLLS to keep the legislators’ drafting files indefinitely. In 1993, the General Assembly also amended section 24-72-202 (6.5)(b), C.R.S., of the Colorado Open Records Act (CORA) and section 2-3-505 (2)(b), C.R.S., to define the OLLS drafting files as confidential “work product,” which means the OLLS will not allow a member of the public access to a drafting file unless the legislator on whose behalf the file was created gives express permission.

    So, starting in 1993, the OLLS asked legislators when they left the General Assembly to sign a form telling us what the OLLS should do if a member of the public asked to see their drafting files. Using the form, legislators could waive the work-product privilege for all of the drafting files created by the OLLS in their name or they could refuse to give permission for members of the public to look at any of their drafting files. Since most legislators did not know what was in their drafting files because they didn’t create the files, legislators often did not know how to respond to the waiver form. Many simply never filled out the form. And the reality was that the OLLS actually never received requests under CORA to see the drafting files.

    Meanwhile, the drafting files began to accumulate. Due to a lack of space in the Capitol sub-basement where the OLLS stores extra files and due to the conditions in the sub-basement, which are less than ideal (think dust, water leaks, and beetles), the OLLS started transferring older drafting files to State Archives. Recently, we discovered that State Archives had over 1,100 cubic feet of OLLS drafting files, including some dating back to the 1930s. If you stacked those boxes of drafting files end to end, that’s the equivalent of three and a third football fields or almost three and a half times the height of the Colorado State Capitol building!

    Also, questions began popping up concerning implementation of the records retention policy.  For instance, what if a legislator died? Could someone else waive the work-product privilege? What if a former legislator moved and we couldn’t find her? Should the drafting files be preserved as evidence of legislative intent? Did these drafting files have any historical value? Why were we keeping files in perpetuity when they were seldom opened and couldn’t be shared without permission from the legislator?

    Faced with all of these questions, the OLLS did what any good legislative service agency would do – we asked our legislative oversight committee to do a study!

    After two years of research and investigation, a committee field trip to the sub-basement to see the dust, bugs, water leaks, and lack of space for the OLLS drafting files, and an examination of their own drafting files, the members of the Committee on Legal Services (COLS) concluded that the drafting files did not need to be kept forever on shelves in the sub-basement or in State Archives.

    (l to r) Senators Kagan, Scott, and Scheffel check out the storage conditions for legislator drafting files on a fieldtrip to the subbasement last fall. (photo courtesy of Jeff Roberts, Executive Director, Colorado Freedom of Information Coalition)

    The COLS determined the following:

    • A privilege held by a deceased legislator cannot be waived by someone else since the privilege dies with the legislator;
    • The practice of asking legislators to make blanket waivers of the work-product privilege protecting drafting files that they did not create does not make sense and should be discontinued;
    • The drafting files do not need to be preserved as evidence of legislative intent because the contents only reflect draft legislation before introduction, only apply to one legislator, and do not represent what a legislative committee or the legislative body intended when it passed a bill; and
    • There is minimal long-term historical value to the drafting files. In fact, one legislator quipped that we should destroy the old files in a bonfire à la The Bonfire of the Vanities.

    Ultimately, the COLS recommended to the Executive Committee that the OLLS drafting files should be kept for eight years and files older than eight years, including those at State Archives, should be destroyed—not by fire but by shredding. The Executive Committee voted unanimously on March 3, 2017, to revise the Retention of Records Policy for Records of the OLLS as recommended by the COLS.

    Why did the COLS select eight years for the retention time?

    • It mirrors the length of term limits for individual legislators; and
    • That’s the approximate amount of room the OLLS has in the sub-basement for storage.

    As a result of the new policy:

    • The OLLS will work with State Archives in the 2017 interim to shred the 1,100 cubic feet of old drafting files currently saved at State Archives;
    • The OLLS will shred drafting files after they have been stored for eight years;
    • The OLLS will stop asking legislators for blanket waivers of work-product privilege for their drafting files; and
    • The OLLS will handle requests by the public to access an existing drafting file on a case-by-case basis, leaving it up to the legislator to determine whether to waive the work-product privilege.

    And that…as Paul Harvey used to say on the radio…is the rest of the story.

  • Who Owns the Law? The Colorado Perspective on Copyright and State Statutes

    By Jennifer Gilroy and Abby Chestnut[1]

    Here is a civically inspired thought for you: As a citizen of the United States, you own the law. The law is not subject to copyright protection, so it finds its home in the public domain. However, questions may arise about whether the original works, such as case annotations and editor’s notes, that often accompany the law when it is published are subject to copyright protection or are also owned by the people.

    The U.S. Constitution charges Congress with promoting the “progress of science and useful arts” by developing copyright law, and Congress has done so by allowing original, individual expressions that have a “modicum of creativity” to receive copyright protection. If like most people, you’re unsure of what a “modicum” is, a synonym is “shred”. The laws passed by a legislative body, as representatives of the people, are not creative, individual expressions that are entitled to be protected by copyright.  However, as a general rule, a “modicum of creativity” is an extraordinarily low standard and, therefore, copyright protection attaches to most original works.

    And herein lies the rub with copyright and statute publication. While the text of the law itself is not copyrightable, most parts of the federal and state codes are accompanied by “ancillary works” such as editor’s notes, source notes, and, most substantively, annotations that summarize appellate court cases interpreting the statutes. These ancillary publications may, in fact, possess a “modicum of creativity” and, depending on how they are written and published, may be copyrightable.

    Even when material is subject to a valid copyright, someone may use that material if it is a “fair use” under the law. Courts will consider four factors to determine whether a use was, in fact, “fair” and not an infringement on the copyright:

    1. The purpose and character of the use—it’s more likely to be a “fair use” if it is being used for a nonprofit educational purpose rather than a commercial purpose or if the use is a “transformative” work that adds something new with a further purpose or different character, like a parody;
    2. The nature of the copyrighted work—it’s more likely to be a “fair use” if it is factual material rather than a creative work;
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    4. The effect of the use on the value of or potential market for the copyrighted work.

    If the ancillary works accompanying the statutes are copyrighted and later reproduced when people copy and use the annotated statutes without permission, there is an issue as to whether that use would be “fair.”

    Colorado has neatly side-stepped this sticky issue.  Consistent with court findings and scholarly opinions, the Colorado General Assembly views the Colorado Revised Statutes—including their arrangement, headnotes, and numbering systems—as part of the public domain and does not attempt to copyright them. However, Colorado law authorizes the Committee on Legal Services, or its designee, to copyright—not the statutes—but the original publications and editorial work that accompany the Colorado Revised Statutes. (See section 2-5-115, Colorado Revised Statutes) Unlike most states, the Colorado legislature’s nonpartisan staff in the Office of Legislative Legal Services drafts the ancillary publications related to the statutes, including source (history) notes, editor’s notes, cross references, various indices, and case annotations, all of which are published together with the statutes, both in print and online.

    Pursuant to its statutory authority, the Committee on Legal Services historically registered a copyright in these publications. But in 2016 the Committee suspended the practice, citing to the fact that, unlike other states where editorial work and case annotations are the product of a work-for-hire private contractor, in Colorado the publications are a product of state-paid legislative staff and are made freely available on the Colorado General Assembly’s public access website.  The Colorado General Assembly, through its Committee on Legal Services, contracts with LexisNexis to format, bind, and distribute the Colorado Revised Statutes books. But to ensure broad public access to the state’s laws, the Committee’s publications contract with LexisNexis also requires LexisNexis to host a fully annotated version of the Colorado Revised Statutes in searchable format on the internet without cost to the state or the public. This invaluable resource is directly accessible by the public through the legislature’s website.

    In hosting this online resource, LexisNexis provides a website that is searchable and offers several value-added features useful to the legal researcher. And while certain terms and conditions on the site are designed to protect its technology, services, software, graphics, logo, and value-added design features, LexisNexis does not claim a copyright in the law itself or in the additional ancillary publications described in this article.

    However, not all states prepare and publish their statutory code in the same way Colorado does; in fact, many do not. For example, Georgia contracts with LexisNexis to publish its Official Code of Georgia Annotated (O.C.G.A.) and to perform certain editorial work and write the accompanying annotations. LexisNexis registers a copyright in the code’s annotations, which Georgia then holds. While the state makes the statutes themselves publicly available online, it makes the official code with annotations available only for sale.

    In 2013, an entity purchased Georgia’s official code, scanned it, and posted it in its entirety online. Georgia subsequently sued the entity in the United States District Court for infringement of its copyright. Georgia agreed that the text of Georgia’s law itself belongs to the public. But Georgia argued that the copyright in the original, creative works accompanying the statutes (such as the annotations) are protected by a valid copyright and that copying and distributing the entire annotated code online does not constitute a fair use under copyright law. The defendant argued that the annotations do not possess the “modicum of creativity” necessary for a valid copyright, and even if they do, the use was fair.

    Just this month, the court issued its ruling on motions for summary judgment in the case of Code Revision Commission v. Public.resource.org, Inc.  In denying the defendant’s motion and granting Georgia’s motion for partial summary judgment, the court observed that the selection, writing, editing, and creativity of the annotations requires skill, evaluative analysis, and a tremendous amount of work. The court, therefore, determined that these efforts confirm that the annotations are original works entitled to broad copyright protection. The court further found that the defendant had failed to meet its burden of proving that posting a verbatim replication of the O.C.G.A. online was a fair use.

    The challenge in Georgia was not the first case of this type and will probably not be the last. While we can say with certainty that the text of the law itself is not copyrightable, the issues surrounding the copyrighting of materials that accompany the law may continue to find their way to court. For now, however, Colorado will not be caught in the thicket of these thorny copyright issues.

    [1] Abby Chestnut is a third-year law student at George Mason School of Law who has permanently relocated to Denver where she is completing her studies at the University of Denver Sturm College of Law.  Mrs. Chestnut is participating in an internship this semester at the Office of Legislative Legal Services.  She anticipates receiving her juris doctor degree in May.

  • New Standard for Education Services under IDEA Still Open to Interpretation

    by Julie Pelegrin

    Since 1975, the federal “Individuals with Disabilities Education Act” (IDEA) has required states to provide a “free appropriate public education,” or FAPE, to each child with a disability. People are reasonably clear—though not completely—on what “free,” “public,” and “education” mean. But the courts have struggled with what “appropriate” means. Last week, the U.S. Supreme Court, in deciding the case of Endrew F. v. Douglas Cty. School Dist. RE-1, handed down the latest interpretation: The educational services and supports a child receives must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

    So, how did the Court arrive at this particular standard? And what difference is it likely to make for public schools and children with disabilities going forward?

    The last time the U.S. Supreme Court considered what Congress meant when it required a FAPE for each child with a disability was in 1982. The case of Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley centered on first grader Amy Rowley, who had a hearing impairment. Her individualized education plan (IEP) called for her to be fully integrated into the regular classroom and to spend time with a special tutor and a speech therapist. Amy’s teacher used a wireless device that transmitted to an FM hearing aid that Amy wore. Amy made excellent academic progress under these arrangements, better than many of the children who were not hearing impaired, but she didn’t fully understand everything going on in the classroom. Her parents sued the state claiming that her IEP should require the school to provide a sign language interpreter, giving Amy educational opportunities that were equal to those enjoyed by her non-hearing-impaired peers.

    That was the first case in which the Court had to interpret the level of education that children with disabilities are entitled to under IDEA. The Court rejected Amy’s parents’ argument that she was entitled to services that would give her opportunities equal to those of children who did not have a disability. But it also rejected the state’s argument that a FAPE was merely aspirational and that IDEA did not create any substantive right to an education.

    Instead, the Court held that IDEA guarantees a substantively adequate program of education to all children with disabilities. This guarantee is satisfied if a student’s IEP requires educational services and supports that “are reasonably calculated to enable the child to receive educational benefits.” In the case of a child who is fully integrated into a regular classroom, like Amy, “educational benefits” means the child receives passing grades and is advancing from grade level to grade level. Since Amy was earning good grades and moving from grade to grade, the Court found that she was receiving a FAPE and her IEP was sufficient; she was not entitled to a sign language interpreter.

    However, the Court refused to establish a single test for determining the adequacy of education benefits for all children with disabilities. The severity and types of disabilities cover such a broad spectrum that adequacy could vary widely from child to child. In applying the Rowley standard over the last 35 years, the courts have generally said that an educational benefit is adequate if it confers “some educational benefit” on the child.

    This standard led Endrew F. and his parents to the U.S. Supreme Court. Endrew—referred to as Drew in the case—was diagnosed with autism when he was two years old. His parents enrolled him in Douglas County Schools (DCS), where he received an IEP. The educational services and supports that he received under the IEP enabled him to make some progress. He progressed from kindergarten to fourth grade but was still exhibiting disruptive behaviors that inhibited his ability to access learning in the classroom. Drew’s IEP had not changed significantly over the years, and in April 2010 when his parents received his proposed IEP for fifth grade, they decided to pull him out of DCS and enroll him in a private school for children with autism—Firefly Autism House.

    At Firefly, Drew received a new behavioral intervention plan and higher academic goals, and Drew made good progress for six months. When DCS suggested a new IEP to Drew’s parents in November 2010, they decided it looked too much like the old IEP and sued the school district. They claimed DCS was not providing a FAPE for Drew and therefore, under IDEA, they were entitled to reimbursement for the cost of tuition at Firefly.

    The administrative law judge, the federal district court judge, and the Tenth Circuit Court of Appeals judges all applied the Rowley standard and sided with DCS. While Drew may not have made a lot of progress academically or behaviorally at DCS, he had made some progress. The Tenth Circuit specifically found that the law required only that he make “merely more than de minimis” progress— which means more than a negligible amount of progress. Under this standard, DCS was meeting the requirements of IDEA with Drew’s IEP, and Drew and his parents were not entitled to more services.

    The U.S. Supreme Court disagreed—unanimously. Specifically, they disagreed with the Tenth Circuit’s interpretation of the Rowley case. The Court reminded the Tenth Circuit that in Rowley they refused to set a standard for what constitutes educational benefits. A child’s IEP must focus on the individual child and his or her unique needs and be designed to enable the child to make educational progress. A child with disabilities is still not entitled to services that will guarantee to the child educational opportunities that are equal to those of his or her peers without disabilities. But the child’s educational program must be “appropriately ambitious in light of his circumstances” and afford “every child…the chance to meet challenging objectives.”

    So that’s the new standard: A child’s IEP must be reasonably designed to enable the child to make progress “appropriate in light of the child’s circumstances.” The Court recognized that this is a standard, not a formula, but it is “markedly more demanding” than the “merely more than de minimis” progress standard that the Tenth Circuit applied. As a standard it is still open to interpretation, and the courts are supposed to give deference to school district experts in deciding what level of progress is appropriate for a child.

    It remains to be seen whether Drew’s parents will be reimbursed for the tuition they paid to Firefly for their son’s education. The Tenth Circuit will have to determine whether the services in the IEP provided by DCS would have enabled Drew to make progress that was appropriate to his circumstances. While Drew made significant progress with certain services at Firefly, the court could conclude that the services offered by DCS would have been sufficient for “appropriate” progress.

    And it remains to be seen whether the new standard will result in real changes in the services that schools provide to children with disabilities. The Court’s decision does not answer the question of whether a school must provide the highest, most expensive services to enable a student to make the most progress or whether less expensive services that result in good progress are sufficient. There is a great deal of room to debate how much progress is appropriate in light of a child’s circumstances— almost as much room as existed when deciding whether a child received an educational benefit.

  • An Overview of the Colorado Attorney General’s Office and Its Relationship to the General Assembly

    by Abby Chestnut

    “If I am going to pick and choose the laws I defend, I wouldn’t be doing my duty as attorney general.” – Kelly Ayotte, Former Attorney General for New Hampshire

    The “duty to defend” is commonly understood to be central to the role of the state attorney general, but this duty is also one that serves the General Assembly. Without an institution that is charged with enforcing and defending the state’s laws, the work of the state legislature could be ignored and thereby rendered ineffectual. The Attorney General (AG) ensures that the laws that the General Assembly labors to produce each session have an effect on the lives of Coloradans.

    Created by the Colorado Constitution, the office of Attorney General, housed in the Department of Law, is technically an executive branch agency. However, the AG’s Office in Colorado is headed by an independently elected attorney general who can serve a maximum of two four-year terms. The Colorado AG is charged with serving as the legal counsel for every department or division of the state and representing the state in any action in which the state is a party or is interested, with few exceptions. The Attorney General does not represent the legislative branch, though the General Assembly may request a formal attorney general opinion from the AG on questions of law. In terms of specific powers, the Colorado Supreme Court has held that the Attorney General gets his or her authority from two places: the common law—unless the General Assembly specifically repeals these powers—and statute.

    It is also worth noting that as an independently elected official, the AG does not report to the Governor. The AG represents the state, a position that was reinforced by the Colorado Supreme Court recently when Governor Hickenlooper tried to block Attorney General Cynthia Coffman from suing the federal government over the Clean Power Plan. The court declined to issue an opinion on the matter, stating that there were alternative remedies available. Although the AG’s office may represent the Governor in some capacities and may issue legal opinions to the Governor, litigation control rests with the AG, and the Governor may not direct the AG to cease litigation. In certain circumstances, the Governor or other state agencies can employ outside legal counsel should the AG be unable to provide the legal services needed. In practice, the two offices may confer on major issues, but there is no obligation to cooperate.

    The Department of Law, in which the AG’s office is housed, is organized into eight main sections:

    1. Business and Licensing: This section represents the Department of Regulatory Agencies and many of its divisions, the Department of Agriculture, the State Personnel Board, the Independent Ethics Commission, the Mined Land Reclamation Board, the State Claims Board, and the Office of the Child Protection Ombudsman.
    2. Revenue and Utilities: This section represents the Department of Revenue, the Trial Staff of the Public Utilities Commission, the Property Tax Administrator and Property Tax Division, and statewide clients regarding bankruptcy matters.
    3. State Services: This section represents half of the executive branch state agencies in Colorado (including the Department of Labor, Department of Education, Department of Higher Education, and the Colorado Department of Health Care Policy and Financing), as well as Colorado’s five elected public officials: the Governor, Lt. Governor, Attorney General, Secretary of State, and Treasurer.
    4. Consumer Protection: This section represents Colorado consumers by prosecuting fraud; enforcing consumer protection and antitrust laws; implementing the Tobacco Master Settlement Agreement; enforcing state laws on consumer lending, predatory lending, debt collection, rent-to-own, debt management, and credit repair; and advocating for residential, small business, and agricultural public utility ratepayers through the Office of Consumer Counsel.
    5. Criminal Justice: This section provides assistance to district attorneys in certain types of cases and prosecutes multi-jurisdictional cases involving human trafficking, major drug trafficking organizations, and white-collar and environmental crimes. This section also prosecutes crimes in which the AG has original jurisdiction: securities, insurance, and election fraud.
    6. Criminal Appeals: This section is responsible for all Colorado criminal prosecutions at the appellate level.
    7. Natural Resources and Environment: This section represents the Colorado Department of Natural Resources and the Colorado Department of Public Health and Environment and advocates on behalf of the Colorado Resources Trustees and the Colorado Energy Office.
    8. Civil Litigation and Employment: This section defends all state agencies and employees that are sued in state or federal court for personal injuries, property damage, employment discrimination, or constitutional violations. This section also serves as general counsel to a host of agencies, including the Colorado Department of Transportation, Department of Corrections, State Board of Parole, POST Board, and Civil Rights Division.

    The AG’s Office also houses the Office of Community Engagement, an office dedicated to informing the public about the work of the AG’s Office and engaging citizens in dialogue about solutions to social issues within the purview of the office. This office also houses the Safe2Tell program, which provides an avenue for a student, parent, school staff, or concerned community member to anonymously make a report if he or she believes there may be a safety threat.

    The Department of Law, which employs about 270 attorneys, is the largest law firm in the state of Colorado, but its size matches its charge. It is responsible for representing almost every arm of state government and defending all of the state’s laws. This massive task is led by an independently elected attorney general whose duty is to the state, its laws, and its citizens. Though the AG’s office does not legally represent the General Assembly, the AG’s responsibility as the state’s chief law enforcement officer establishes an important relationship between the two government entities.