Colorado LegiSource

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

Author: olls

  • Tips for an Effective Legislator

    by Gwynne Middleton

    By the time legislators reach the hallowed halls of the State Capitol, they have mastered many important leadership skills that will serve them well in working with constituents, staff, and other elected officials to improve the lives of Coloradans through their policy decisions. Still, in the midst of a fast-paced legislative session, it’s easier than you’d think for what seems like a minor misstep to undermine a legislator’s ability to achieve his or her legislative goals. Below are 15 important tips shared from the National Conference of State Legislatures to help our senators and representatives legislate like champs.

    1. Honor the Institution

    To succeed in its goal to serve its citizens, government requires trust between citizens and their representatives. Appeal to the best interests of the electorate, represent your constituents’ needs, focus on your values and what you want to do while in office, and direct your energy toward fulfilling those promises. You ran for office to make a positive difference in Colorado. Don’t lose sight of the vision you have for making that difference.

    2. Take the High Road

    In matters of public trust, appearances matter. Government thrives on ethical transparency. Perfectly legal actions can still look fishy to the public. Since public officials are held to higher standards than average citizens, avoiding situations that carry the appearance of impropriety will encourage public confidence in your legislative work. For the sake of the General Assembly and your career in public service, understand Colorado’s ethics codes and adhere to them.

    3. Master the Rules

    It’s no easy feat to become an expert on intricate legislative process rules, but the more adept you are at knowing the rules, the better you’ll be able to participate in the process, helping yourself and your constituents be heard. The most effective way to learn your legislative chamber’s rules is through application. Don’t be afraid to keep your rules book nearby so that you can call upon them when you’re unclear about a particular legislative process.

    4. Know Where to Find Help

    From fellow legislators and legislative staff to the folks in the governor’s office and the executive branch agencies, your political community is your best resource for gathering nuanced information about an issue. Setting aside just 20 to 30 minutes before a committee meeting to review bills on the agenda with legislative staff will help you bring your A-game to committee discussions.

    5. Manage Your Time

    Stay organized, prioritize what’s most important to accomplish, meet deadlines, and only commit to what you consider important. It’s easy to overcommit in an environment where numerous stakeholders are jockeying for your attention. If you tend to be a “yes” person, be careful and protective of your time. It’s limited, and if you’re overcommitted, you won’t be able to do your best work as you juggle the overwhelming schedule. Instead of giving attention to that which you care most deeply about, you’ll spread yourself thin and wind up disappointed.

    Managing your time is also about punctuality. If you’re flying by the seat of your pants because of multiple commitments, your punctuality may suffer, creating an unprofessional appearance. People won’t take you seriously if they feel that you aren’t on top of your game, and in some cases, being late to meetings will cause your colleagues and constituents to believe you don’t respect their time.

    6. Develop a Specialty

    Your time as a legislator is limited. Develop a legislative agenda that’s not only rooted in your personal background, previous experiences, and policy expertise but tightly focused on your district’s needs. By cultivating a policy focus during your tenure, you can become the member others seek out for expertise. The kicker? You’ll practice valuable negotiation skills and gain the reputation of being a serious, committed lawmaker whom people will clamor to support.

    7. Vote your Conscience

    It’s not always an easy choice to vote your conscience, especially on controversial issues when your belief conflicts with constituents who voted for you to represent them or if a campaign contributor tries to sway your vote. After gathering information from all sides, vote as you see fit, but be prepared to explain your votes to constituents. By communicating with your constituents about the reason behind your position, you create an environment of transparency, and transparency has been proven to increase trust. Even if they don’t agree with your decision, they’ll be in a better position to respect you for the decision you made.

    8. Don’t Burn Bridges

    Be open to compromise, even with those who may not be natural allies. Create a broad set of associates, even beyond your chamber. Maintain a professional demeanor and keep emotions in check. Even if a colleague doesn’t like you, you’ll earn respect for being level-headed.

    9. Keep Your Word

    You’re only as effective as your reputation. Your colleagues rely on your credibility. Make only promises you can keep. While the best way to keep your word is to not commit until you have all the facts, if you learn information that would change your vote, be transparent about why you need to change your vote to prevent hard feelings.

    10. Be Careful What You Agree to

    To keep your word, it’s important to avoid casually agreeing to cosponsor bills that you aren’t invested in. Sometimes you may have to vote against a bill that you’ve agreed to sign on to sponsor. Before agreeing to be sponsor, give yourself 24 hours to make sure you understand the bill. Just because you like a person and usually trust that person’s views doesn’t mean you’ll always agree. If the sponsor of the bill cares deeply about your support of their bill, they will wait a day for your decision.

    11. Don’t Hog the Mike

    Even if you’re an expert on every bill that’s up for debate, be selective about which bills you discuss before the chamber. If you’re always in the well speaking on every bill, you risk diminishing your power as a speaker. Quality should always win out over quantity in public speaking. By being judicious about your mic time, when you do speak, your colleagues will be more likely to listen when you step into the limelight.

    12. Stay in Touch with Your Constituents

    Always remember the people who elected you. Hire the aides who are best able to help you maintain strong contact with your constituents.

    13. Be a Problem Solver

    Rather than getting caught up in the drama that often accompanies controversial issues, use your skills and your office to help your community focus on solutions. Work with state agencies and local governments to find a solution that will benefit the most people in your community.

    14. Work with the Media

    Reporters care deeply about their responsibility to keep their viewers informed with factually accurate news. Reach out regularly to reporters to share your position on issues, but be sure to focus on the policy process and the issues rather than only on partisan differences and conflict. Make your information easy to understand and use, and, when the media does a good job of reporting fairly, remember to acknowledge that good work.

    15. Self-care and Presence

    The weighty responsibilities and accolades that accompany holding public office can be unhealthy substitutes for intimacy, fellowship, and taking care of yourself and the people you care about. The attention of others is no substitute for an interior life. Maintaining an interior life will help you feel more at ease during the times in life when professional commitments can pull you in many directions.

  • Happy Birthday, Colorado Independent Ethics Commission!

    by Jennifer Gilroy

    Ten years ago voters in Colorado approved a citizen-initiated measure—Ethics in Government—aimed at enhancing the public’s confidence and preserving the public’s trust in government officials and employees by imposing gift bans on state and local government officials and employees, limiting gift-giving by professional lobbyists, and restricting certain public officials’ post-public-service employment.  Effective December 31, 2006, the measure became Article XXIX of the Colorado Constitution, but among those folks who are subject to its ambitious restrictions, it is simply referred to as “Amendment 41,” the number it bore on the 2006 ballot. We hear and read a lot about Amendment 41’s gift bans, but far less about another essential component of Amendment 41: the “independent ethics commission,” also established by the measure and now celebrating its 10th birthday.

    Intended to be completely independent of all three branches of government, the independent ethics commission, or IEC, is composed of 5 volunteer members, one each appointed by the Colorado Senate, the Colorado House of Representatives, the Colorado Governor, and the Chief Justice of the Colorado Supreme Court.  These 4 commissioners appoint the final member of the commission, who must be a local government official or employee. The constitution contemplates that the commissioners serve staggered 4-year terms. But over the IEC’s short history, at least one commissioner served a shorter duration—departing after just 6 months of service—and another served more than 4 years until her successor was selected and appointed.  Not surprisingly, finding a qualified individual willing to serve for free on a commission that meets at least monthly and that undertakes the thankless work of investigating complaints against public officials and government employees can be challenging for the appointing authorities.  To further complicate matters, but more importantly to preserve bipartisanship, Amendment 41 directs that not more than two commissioners may be affiliated with the same political party.  This June the terms of both the state Senate’s appointee and the Governor’s appointee will expire, and the composition of the commission will change once again.

    The IEC is charged with hearing complaints against public officers and other state and local government officials and employees who are alleged to have violated the terms of Amendment 41 or some other standard of conduct or reporting requirement established in law.  Discerning which of those standards and reporting requirements the commission has jurisdiction to enforce, however, is not a simple task, as the commission has already learned.  The Colorado Supreme Court has agreed to hear the case of Gessler vs. Grossman, et al, 15SC462, (see p. 8) to address this very issue.

    As part of the complaint process, the IEC must issue findings and assess penalties (Amendment 41 authorizes fines that are double the amount of any benefits realized as a result of wrongdoing) if the commission determines that the public official or employee has breached the public trust for private gain.  However, individuals whose conduct is under the IEC’s scrutiny may find that the public nature of the process is more punitive than the threat of any penalty.  The IEC’s proceedings are subject to the Colorado Sunshine (open meetings) Law and the Colorado Open Records Act.  Also, public interest groups typically attend the IEC’s meetings and tweet highlights of the commission’s discussions.  And the IEC is currently working to begin live audio broadcasting of its proceedings in real time.

    But the IEC has an equally, if not more, important role as an advisor, consultant, and instructor on ethics-related matters.  The constitutional amendment directs the IEC to provide advice to individuals who are subject to Amendment 41 and are facing ethics dilemmas arising under the amendment or another standard of conduct or reporting requirement.  Over the years, the IEC has issued dozens (approximately 124 to date) of topic-specific opinions to help guide the behavior and conduct of public officials and employees.  Included in these opinions are many position statements that the IEC has periodically issued in an effort to alleviate uncertainty and provide its interpretation of the sometimes confusing and often ambiguous language of Amendment 41.

    Anyone who is interested in requesting an advisory opinion from the IEC must realize that timing is critical.  Submissions must comply with the IEC’s internal procedural rules, which require that requests be in writing and delivered to the IEC at least 10 days before its next meeting.  In most circumstances, the IEC will issue its opinion within 30 to 60 days after receiving the request.

    The IEC also conducts helpful public outreach.  It has published an Ethics Handbook and the executive director of the IEC—the commission’s only paid staff—has historically conducted training for government agencies and offices.

    Happy Birthday, IEC!

  • A Legislator’s Guide to Creating Cash Funds

    by Ed DeCecco

    “How do I love thee [cash funds]? Let me count the ways.” Elizabeth Barrett Browning’s Sonnet 43

    Ms. Browning may not have written her sonnet about the Colorado General Assembly’s affection for cash funds, but if she’d seen how many cash funds exist in the Colorado Revised Statutes, she might have been tempted to do so.

    While I’m no poet, I can count. So let me count the ways that the Colorado General Assembly creates the cash funds that it loves and, along the way, include a brief description and my thoughts on each.

    One. Cash funds created for fee revenue.

    Sometimes a program or particular service will be funded with a fee that is deposited into a cash fund. For example, the fees charged to enter a state park are deposited in the parks and outdoor recreation cash fund, and that money is appropriated to the Division of Parks and Wildlife in the Department of Natural Resources for state park operations.

    This is an instance when a cash fund is critical. If there was no cash fund, then the fee revenue would be deposited into the general fund and used to pay for general government services, instead of the particular program for which it was created. Not only would the program lack funding—oops!—but the fee would lose an essential characteristic that distinguishes it from a tax. Presuming that it was created without prior voter approval, that could raise a constitutional issue. (Hint: The provision rhymes with “neighbor.”)

    Two. Cash funds created for gifts, grants, or donations.

    As an alternative to creating a fee, the general assembly may empower a department to accept and expend gifts, grants, or donations to be used for a particular purpose, and that money will be deposited into a cash fund. These gifts for a designated purpose are a type of money called custodial funds. Custodial funds are not money that a person earns while incarcerated, but rather, as the Colorado Supreme Court explained in Colorado General Assembly v. Lamm, they are “funds not generated by tax revenues which are given to the state for particular purposes and of which the state is a custodian or trustee to carry out the purposes for which the sums have been provided.”

    So, if an individual gave the state $1,000,000 for Ed. funding, that money cannot be deposited into the general fund and used to pay for the general operations of the state. Instead the department is required to give it to me or other men named Ed, or, perhaps, use it for the less-fun, but worthier purpose of funding a particular education program. In either case, the money will be separately accounted for, and the department will only be permitted to spend it for designated purposes. Also, unlike state money, custodial funds are not subject to appropriation and are typically excluded from state fiscal year spending under TABOR. With all of these considerations, there is no reason to create a cash fund just for your gifts, grants, and donations, other than to reiterate a clever program name.

    Three. Cash funds created to spend general fund revenue.

    Many times a new program will be created without specifying a particular source of funding. In these instances, the likely place from which the money will be paid is the general fund. But instead of appropriating the money directly from the general fund, sometimes the money is transferred or appropriated to a cash fund and then appropriated to the department for the intended purpose. Maybe there is a reason for this funding two-step, such as setting aside money from the current year to be used in future years, but often I can’t tell what it is.

    Unfortunately, this mechanism obscures how state money is being used (and gives our accountants headaches). If the money is transferred to the cash fund, the money will appear in the annual appropriations bill under the cash funds appropriation column, even though it is actually general fund revenue. Or there may need to be two appropriations in the annual appropriations bill: an appropriation from the general fund to a cash fund and then an appropriation of reappropriated funds from the cash fund to grant the department the authority to spend the money. Given that you’ve probably glazed over just reading my description of how this works, you would likely agree that it would be much more straightforward and transparent to directly appropriate the money from the general fund and skip the cash fund in this instance.

    Four. Cash funds created to spend fees; gifts, grants, or donations; and general fund revenue.

    Often a program will be primarily funded by fees that are deposited into a fund, but the cash fund will also include gifts, grants, or donations and any other money that the general assembly may appropriate or transfer to the fund. I can’t decide if this is a result of bill drafters being thorough or if it indicates the optimistic nature of legislators. Either way, I’m not sure how often the public or the joint budget committee exercises its power to supplement the fee revenue. A cash fund is still appropriate in this case because of the fee revenue. Keep in mind, though, that gifts, grants, or donations are not subject to appropriation, and, therefore, the authority to spend the fee revenue should differ from the gifts, grants, or donations.

    Five. Cash funds created for taxes.

    While taxes are generally designed to raise revenues to defray the general expenses of government, it has always been somewhat fashionable to treat our state taxes like fees by crediting the tax revenue to a cash fund and then limiting the uses. This may be done to comply with the initiated or referred measure (for example, the tobacco tax cash fund was created to facilitate the constitutionally mandated distribution of the tobacco taxes created by Amendment 35) or because the underlying activity being taxed seems to demand that the derivative revenue be used accordingly (for example, a portion of severance taxes are deposited in the local government severance tax fund). In these instances, which are relatively infrequent, a cash fund may be necessary for administrative reasons.

    So, there you have it, five ways the general assembly creates cash funds. And while it is always fun for us bill drafters to create one, perhaps they could be created less often when they are not legally necessary. To help remind you of this, I’d like to conclude this article with a little poem. (While I said I’m not a poet, I’m not afraid to compose a doggerel verse or two.)

    Roses are red, violets are blue, cash funds are awesome, but maybe we should have less of ’em.

  • Creating an Enterprise Pursuant to TABOR – Part 2

    by Esther van Mourik

    This week we are continuing our discussion about the definition of an “enterprise” under TABOR. If you missed Part 1 of our discussion, please click here for that article.

    Part 2

    Part 1 focused on the definition of an enterprise and what kinds of activities might qualify as enterprises. But might there be a time when the activity of an entity is too tenuous to qualify as a business? The 2015 and 2016 debates around the hospital provider fee are illustrative of the difficulty in determining what a government-owned business really is.

    The hospital provider fee was established in 2009 under the Health Care Affordability Act of 2009. This act requires Colorado hospitals to pay a fee to the state, which, when added to certain state funds, is then matched through a federal government program. The fee is combined with federal money and the total amount ($805 million dollars in FY 2015-16) is distributed back to Colorado hospitals as compensation for health care services provided to individuals covered by Medicaid. The fees paid by the state hospitals are currently counted as state budget year revenue under TABOR and count toward the state’s budget year revenue limit. Because state revenue has been forecasted to exceed the limit, some have proposed creating an enterprise to collect the hospital provider fee. Removing the fee revenue from the calculation of the state’s budget year revenue, would allow the state to collect other revenues without exceeding its TABOR limit while still ensuring that the hospitals can receive state and federal moneys for the provision of Medicaid services.

    At the time the hospital provider fee enterprise was first proposed, no new statute had been written or court decision rendered about the definition of an enterprise since the Colorado Bridge Enterprise or CBE decision. As a result of the debates over the proposal, several new opinions are now available regarding the matter, one from the Office of Legislative Legal Services (Office), one from practitioners in this legal area, and one from the Colorado Attorney General.

    Our Office’s opinion, dated December 31, 2015, states that, while legislation enacted by the General Assembly is presumed constitutional, an enterprise created only to charge and collect the hospital provider fee is not a business for purposes of enterprise status under TABOR. The conclusion hinges on the fact that all the entity would be doing is collecting money to leverage and obtain more money from the federal government. If that is all the entity would be doing, there would be no “fee for service” because there is no real service being provided. The opinion also relies on there being no private sector analogue for paying a fee in order to leverage that fee to seek matching federal money for Medicaid services.

    Not everyone agreed with our Office’s conclusion. Trey Rogers of Lewis Roca Rothgerber Christie, LLP, and Jon Anderson of Holland & Hart, LLP, issued their own opinion on February 11, 2016, concluding that since the fee is collected to access a program that helps hospitals defray the costs of providing medical services to Coloradans who could not otherwise afford to pay for health care, there is a “fee for service” and the activity qualifies as a business. They further argue there is no requirement for a private sector analogue after the CBE decision and, even so, the service provided by the entity would be similar to services provided by insurance and investment brokers to the private sector. The hospitals paying the hospital provider fee are paying the entity their money in exchange for access to greater returns, the increased amount of federal money available to reimburse the hospitals for the provision of Medicaid services.

    On February 29, 2016, Attorney General Cynthia Coffman released her opinion on the matter, concluding that a hospital provider fee enterprise would survive a constitutional challenge. First, she points to the enactment of the hospital provider fee as a fee, not a tax, thus ensuring the entity does not have the power to tax, something the Nicholl decision held to be inconsistent with the characteristics of a business. Second, the Attorney General argues that the fee pays for services that reduce the amount of uncompensated care hospitals are exposed to. Finally, she points out that the entity would be financially distinct from its parent government, a fact that both the Colorado Supreme Court and the Colorado Court of Appeals found important in their respective Nicholl and CBE decisions.

    While the hospital provider fee enterprise debate was continuing, the General Assembly created a new enterprise in 2016. Senate Bill 16-115 creates an electronic recording technology board, which is allowed to impose an electronic filing surcharge when someone records a document with a county clerk and recorder. This fee is to be used to develop and modernize electronic filing systems throughout the state. As stated earlier, legislation passed by the General Assembly is presumed constitutional. But, what is the fee for service here? A better filing system? Fewer headaches when recording deeds? Being able to electronically access recorded documents? It’s not really clear what specific service patrons recording documents with county clerks and recorders will be getting for this additional surcharge, but it’s arguably an activity conducted in the pursuit of a benefit.

    Taking all of these opinions, the newly created electronic recording technology enterprise, and the presumption of constitutionality, where do things stand on the definition of an enterprise for purposes of TABOR? We’re still not absolutely certain, and the analysis has clearly evolved over the past 24 years. Each proposed enterprise needs to be considered in light of the relevant court decisions, legal opinions, and examples of existing enterprises. Members of the General Assembly are encouraged to contact the Office to discuss whether a particular activity may appropriately be characterized as an enterprise under TABOR.

    As a final tool to assist you, the Office has developed this relatively simple flow chart to help determine whether an activity could be designated as an enterprise:

  • Creating an Enterprise Pursuant to TABOR

    by Esther van Mourik

    While the Legislative Council’s December Economic Forecast highlighted improvements in economic gains, it also stated that this optimism is tempered by global economic uncertainty, indicating that the outlook still shows a heightened downside risk. It also laid out the budget realities for the Colorado General Assembly as it begins the 2017 session: “Assuming the $169.2 million shortfall in FY 2016-17 is addressed by reducing the required reserve, revenue will exceed the amount required to maintain the same level of appropriations in FY 2017-18 as is currently budgeted for FY 2016-17 by $215.7 million, or 2.1 percent.”

    The Taxpayer’s Bill of Rights, or TABOR, is a Colorado constitutional provision added by an initiative approved by voters in 1992 that contains tax, revenue, and debt limitations. If a district, including the state, brings in revenue above its limit, as the state did in the 2014-15 budget year, it must refund those excess revenues in the next fiscal year. The December forecast shows that the state is currently projected to exceed the limit again in the 2017-18 and 2018-19 budget years, prompting estimated TABOR refunds of $279.4 million in budget year 2018-19 and $287.2 million in budget year 2019-20. Those refunds are made from the general fund, thereby diverting dollars that would otherwise be available to pay for programs.

    The possibility of TABOR refunds raises the reality that the Office of Legislative Legal Services (Office) will see more bill requests proposing a variety of approaches to retain excess revenues. One such approach that many are talking about is creating an enterprise in order to classify certain governmental activities outside of the requirements of TABOR.

    TABOR applies to all “districts,” which are defined to include the state or any local government, excluding “enterprises.” This means that an enterprise is exempt from the limitations imposed by TABOR, including TABOR’s revenue limit that restricts how much revenue a district can bring in each budget year. If an enterprise generates revenue, that revenue is not counted as part of a district’s budget year revenue for purposes of the district’s revenue limit. Creating an enterprise to classify certain governmental activities outside of TABOR before a year in which revenues are anticipated to exceed the limit, requiring TABOR refunds, has the effect of reducing, if not eliminating, the projected refunds.

    Although enterprises are getting more attention recently, the exception for enterprises was included in the original initiative, and the state designated a variety of activities as enterprises starting shortly after TABOR was adopted. The multi-million dollar question is what activity can qualify as an “enterprise.” Multi-million from the perspective of what would or wouldn’t be counted as part of the state’s revenue limit, thereby possibly helping out with budget constraints, but also from the perspective of the penalties TABOR provides. If the state is successfully sued for creating an enterprise in a refund year that doesn’t fit the definition, it potentially faces serious consequences set forth in the constitution. So, while the court has never struck down an enterprise established by the state, it is clear why many want to know what can and cannot be appropriately classified as an enterprise under TABOR.

    The Colorado Constitution defines an enterprise as a “government-owned business authorized to issue its own revenue bonds and receiving under 10% of annual revenue in grants from all Colorado state and local governments combined.” The reference to “annual revenue in grants” requires an annual determination that an enterprise meets all elements of the enterprise definition. Even from a lawyer’s perspective, this language is less than clear, and its meaning has been heavily debated since 1992. Part 1 of this article gives a primer about those debates. Part 2 – to be posted next week – will cover more recent discussions and will conclude with what the Office thinks we know now.

    PART 1

    After TABOR took effect, the General Assembly passed legislation during the 1993 session to further define some of the terms used in the new constitutional provision in order to assist in administering the law at the state level. Those definitions are laid out in section 24-77-102, C.R.S. The statutory definition of an “enterprise” is identical to what is found in the Constitution. However, that definitional section does clarify the meaning of a “grant” and the “state,” which are not defined in TABOR. Most important is the list of things that are not a “grant,” such as federal funds. The Colorado Supreme Court upheld the General Assembly’s ability to define terms since the General Assembly was seeking to comply with the provisions of TABOR by defining the terms consistent with TABOR.

    During the same legislative session, the General Assembly also created several state enterprises. Those enterprises include higher education auxiliary facilities, the state lottery, a student loan division in the department of higher education, and the veterans’ community living centers. No legal challenges were made to the creation of these enterprises. Subsequently, the General Assembly enacted legislation creating additional state enterprises in 1994, 2000, 2001, 2002, 2004, 2005, 2009, and most recently in 2016. (A list of state enterprises can be found here.)

    An enterprise created by a duly enacted statute is presumed constitutional. What does this presumption of constitutionality mean? If a person claims that a statute is not constitutional, the courts require that person to prove the statute’s unconstitutionality beyond a reasonable doubt (a very high standard that gives great deference to the General Assembly’s law-making authority). And, if a court can read the statute two ways, a constitutional way and an unconstitutional way, the court must choose the constitutional interpretation. (See “Statutory Construction: Legislative Intent and the Presumptions Used to Interpret Statutes”)

    The first (and only) Colorado Supreme Court case that gave direct guidance regarding the creation of enterprises was decided in 1995 in what is often referred to as the Nicholl decision. The case involved the E-470 Public Highway Authority (Authority), which was created by several counties. One of the counties took issue with some of the actions the Authority was taking and sued, claiming that the Authority violated TABOR’s debt and revenue limitations. In response, the Authority claimed that it was an enterprise and thus not subject to TABOR’s limitations.

    The Colorado Supreme Court broke the issue down into three questions: 1) whether the Authority is “government-owned,” which the Court dispatched with ease (the contracts creating the Authority said it was a political subdivision of the state), 2) whether the Authority is a business, and 3) whether the Authority receives more than 10% of its annual revenue in grants from the state and local governments, which the Court noted it did not. With respect to the second question, the Court said that a business is generally understood to mean an “activity which is conducted in the pursuit of benefit, gain, or livelihood.” The Court found that the Authority was organized with the express intent that it provide access to its highway in exchange for the payment of tolls and user fees, thus indicating that the Authority would fit the general understanding of a business. However, because the Authority had the power to levy a tax, a power that the Court found to be inconsistent with the characteristics of a business and the definition of an enterprise as a whole, the Court held that the Authority was not an enterprise. The General Assembly remedied the problem by immediately passing legislation to eliminate the taxing power of the E-470 Public Highway Authority. Because the Authority has continued to satisfy the three-part test every year since, it remains an enterprise to this day. The Nicholl decision established that, to qualify as a business for enterprise status, an entity’s activities have to be conducted in the pursuit of benefit, gain, or livelihood and the entity may not have the power to tax.

    Because of the lack of an abundance of Colorado Supreme Court cases on this topic, secondary interpretations have been helpful. The Colorado Attorney General, private practitioners, and municipal attorneys have opined on what constitutes an enterprise, so it can be useful to consider their opinions as well.

    In 1995, Gale Norton, the Colorado Attorney General at the time, wrote an opinion to answer the question of whether an enterprise providing internal services such as telecommunications and insurance operations to its government-owner, in addition to the public, disqualifies it from being a business. The conclusion was that such entities are still businesses and therefore can be enterprises. Ms. Norton stated that, in order to meet the “business” requirement, an enterprise must be independent, self-supporting, and financially distinct, and must provide goods and services for a fee. The fact that the enterprise also provides services for a fee to its government-owner doesn’t change the result because the Nicholl decision didn’t question the identity of the customers but examined the activity carried out by the entity. The opinion generally states that an enterprise’s provision of goods and services should be something that is commonly carried on for profit outside the government and that the activities should bear the indicia of arms length, market exchanges.

    Amy Kennedy and Dee P. Wisor, two attorneys practicing in the area of government law, wrote an article in 1998 in The Colorado Lawyer further explaining enterprises. The authors questioned whether there is a necessity for the enterprise to have a “private business analogue” or, in other words, whether the enterprise must have a private business counterpart with customers who freely choose to use it. They argued that the Nicholl decision may have implied the private business analogue was necessary when the Colorado Supreme Court cited to an unrelated case that defined a government business as “a function of a government which offers any goods or services to the public for which there are reasonable substitutes provided by nongovernmental entities.” The authors came to this conclusion: “Unless and until the Colorado Supreme Court directly rules on whether ‘businesses’ under [TABOR] must provide services that also are offered in the private sector,” be careful.

    The Colorado Municipal League (CML) has also weighed in on the issue in its publication “TABOR: A Guide to the Taxpayer’s Bill of Rights.” CML created this publication to assist municipal officials in interpreting and applying TABOR in their local government operations. In both its 1993 and 2011 revised versions, CML points out that there are two interpretations: 1) the business must have some counterpart in the private sector, the “private sector analogue”; or 2) the activity is irrelevant so long as the enterprise subsists on an annual budget which includes less than 10% in state and local grants, making it more or less self-supporting, thus making the revenue stream the determining factor. By recognizing both of these conflicting interpretations, the CML guide illustrates the difficulty of developing a consistent test to determine whether specific governmental activities can be classified as enterprises.

    In 2014, the Colorado Court of Appeals issued the Colorado Bridge Enterprise or CBE decision. This case stemmed from the creation of the Colorado Bridge Enterprise in 2009, defined as a government-owned business within the Colorado Department of Transportation and authorized to impose a bridge safety surcharge on motorists’ registration fees to fix certain Colorado highway bridges. In 2012, the TABOR Foundation filed a lawsuit claiming, among other things, that the Colorado Bridge Enterprise does not qualify as an enterprise. The TABOR Foundation relied on Gale Norton’s 1995 opinion that a government-owned business must gain its revenue from market exchanges taking place in a competitive, arms-length manner. However, the Colorado Court of Appeals declined to follow that opinion and decided that the Colorado Bridge Enterprise is indeed an enterprise because it pursues a benefit (fixing bridges) and generates revenue by collecting fees from service users through car registrations, which the Court ruled is not a tax.

    The Colorado Supreme Court declined to take the CBE decision up on appeal, and the Colorado Court of Appeals decision doesn’t provide a thorough analysis indicating that service users must actually attain a benefit for an activity to rise to the level of a business. We can only speculate why the Colorado Supreme Court declined to take the case. We know that Justice Eid would have reviewed the case to look at three issues, including whether an enterprise must involve market exchanges taking place in a competitive, arms-length manner. But one Supreme Court Justice’s opinion on the petition for certiorari doesn’t rise to the level of law. The CBE decision is undoubtedly current law, but it still leaves governmental entities uncertain about what activities can be designated as enterprises. Perhaps CML’s analysis that the entity’s activity is irrelevant so long as all the other factors are checked off is spot on. Perhaps not. At best, the CBE decision begs the question whether the activity, or service provided, would ever be too tenuous to reasonably argue that the entity is truly a business for purposes of enterprise status. Please tune in next week for further discussion on this topic.

  • Minding Your Strike Types and Small Caps

    by Jessica Wigent

    Every bill, no matter the content, has a few things in common: each has numbered sections and each has at least one amending clause.

    The amending clause is not only an important tool, it’s also the bill sponsor’s friend. It announces how a bill plans to change the law and illustrates how the bill adds new language, strikes and deletes previous language, or repeals entire portions of law. A bill isn’t a bill, and it’s definitely not sitting on Capitol Hill, without it.

    Here’s how amending clauses work:

    Let’s say a bill sponsor wants to amend an entire section of law that’s in the Colorado Revised Statutes. The amending clause would look like this:

          SECTION 1. In Colorado Revised Statutes, amend 1-1-1101 as follows:

    The language following the “as follows” specifies what the bill and its amending clause are up to:

          SECTION 1. In Colorado Revised Statutes, amend 1-1-1101 as follows:

          1-1-1101. The above amending clause amends an entire section of law. (1) Within the section that the bill is amending, the changes it makes to the law are illustrated in two ways:

          (a) In small caps; or

          (b) In strike type.

          (2) If a bill adds new provisions to the law, the new language is shown in small caps.

          (3) If a bill repeals provisions of the law, the language is shown in strike type When amending, a bill can both add and remove language in the same provision.

    This is a nifty way to change the law, but maybe the bill sponsor still hasn’t found what she’s looking for. Let’s try it another way:

          SECTION 2. In Colorado Revised Statutes, 1-1-1102, amend (1)(b) as follows:

          1-1-1102. The above amending clause amends a specific provision of the law. (1) Sometimes a bill sponsor doesn’t  need (or doesn’t want) to amend an entire section of the law. When that happens:

          (a) The bill will specify the provision the sponsor wants to change in the amending clause; and

          (b) The bill will make changes to that section subsection of the law only.

    Maybe amending isn’t in a bill sponsor’s plans. But creating new law is:

          SECTION 3. In Colorado Revised Statutes, add 1-1-1103 as follows:

          1-1-1103. The above amending clause adds a new provision of law. (1) Sometimes the bill sponsor will want to add a brand new section of law to the Colorado Revised Statutes.

          (2) When a bill does this, all language in that section will be shown in small caps.

          (3) A bill can add new articles, new parts, new sections, and new subsections.

    Now that we’re on a roll, what if the bill sponsor wants the bill to eliminate not create law?

          SECTION 4. In Colorado Revised Statutes, repeal 1-1-1105 as follows:

          1-1-1105. Use the above amending clause if to the bill doesn’t add to or change a law, but instead removes it from the books entirely.(1) There are two ways a bill can repeal this section 1-1-1105.

          (2) The example shown here shows all of the language that was currently in law in strike type.

          (3) This is how most repeals are drafted, so that legislators and the public can see exactly what provisions are removed from the law.

    Sometimes a bill won’t show the repealed language in strike type because it’s removing the equivalent of 30 pages of law from the Colorado Revised Statutes, and the bill really doesn’t need to be that long. That’s when the bill sponsor might want to use what we in the drafting-amending-clauses-biz call a “straight repealer,” which announces that the provision of law the bill is amending is la fin; it’s over and out of the statutes, without showing the removed language in strike type:

          SECTION 4. In Colorado Revised Statutes, repeal 1-1-1105.

    The bill sponsor is in it to win it now, but maybe the bill should be even more specific:

          SECTION 5.  In Colorado Revised Statutes, 1-1-1104, amend (1) introductory portion and (1)(a); repeal (2); and add (3) as follows:

          1-1-1104. The above amending clause is good at multitasking. (1) Sometimes a bill sponsor does not want to amend an entire section:

          (a) Amending an entire section leaves the entire section open to additional amendments that fit under the title of the bill during the legislative process.

          (b) This is something a sponsor should consider when deciding how to change the law.

          (2) We should all just give up now, it’s getting too complicated.

          (3) Put the amending clause to work. In this example, the bill sponsor wanted to leave (1)(b) alone (to not make any changes to it). So the sponsor only amended, repealed, and added very specific subsections in this section.

    Okay, you say. But what if a bill is amending nearly every provision of a section, part, or article? Is there anything we can do besides use our trusty amend direction? But of course. Here’s where a bill sponsor might choose a different kind of amending vehicle—the R&RE or “repeal and reenact.” To illustrate: Instead of repealing section 1-1-1105 (Section 4 of the bill in the earlier example), let’s repeal and reenact it:

          SECTION 4. In Colorado Revised Statutes, repeal and reenact, with amendments, 1-1-1105 as follows:

          1-1-1105. Repealing and reenacting a provision of law has its pros and cons. (1) On the PRO side, it can be complicated and confusing to extensively amend a section; at some point the reader might have no idea where the strike type starts and the small caps begin. That’s when repealing and reenacting can be useful.

          (2) In the first SECTION for example, subsection (1) read “There are two ways a bill can repeal this section 1-1-1105.” However, because we’re repealing and reenacting this section, we’re removing all the existing language and replacing it with the new and newly arranged—so everything’s in small caps.

          (3) The potential issue with the R&RE is that legislators and the public can’t see, on the page, how 1-1-1105 used to read, which might make it difficult for them to know exactly how the bill is changing the law without dusting off their Colorado Revised Statutes and comparing the original version to the new one.

    We’ve only just scratched the surface of amending clauses. But it’s clear that a well-crafted bill uses amending clauses (and strike types and small caps) wisely.

    In drafting their bills, legislators should work with the drafters to ensure that their fellow legislators, the public, and especially their constituents, can clearly see how the bill is changing the law.

  • Statutory Revision Committee to Introduce 15 Bills

    by Kate Meyer

    In August, Legisource told you about the Statutory Revision Committee (SRC), a recently rebooted entity that examines the Colorado Revised Statutes to develop legislation that will modify or eliminate antiquated, redundant, or contradictory rules of law and to bring the statutes of this state into harmony with modern conditions. Since that article was published, the SRC has been hard at work, meeting three times and ultimately approving 15 bills for introduction in the 2017 legislative session.

    Committee process. Bill ideas can originate from any number of sources: Committee members or other legislators; legislative staff; jurists, attorneys, and other legal professionals; executive agencies; lobbyists; the public; etc. In its first meeting, the SRC adopted the following basic process for considering potential bills:

    final-src-request-flowchart

    (Click image to enlarge)

    The process starts when the SRC’s staff from the Office of Legislative Legal Services receives or creates a bill proposal and initially decides whether the proposal fits within the committee’s charge. Persons may submit bill proposals identifying possible defects or anachronisms in the law or possible antiquated, redundant, or contradictory laws by contacting a committee member or sending an e-mail to SRC staff at StatutoryRevision.ga@coleg.gov

    If staff finds that a bill proposal fits within the committee’s charge, they schedule it for committee discussion. The SRC’s process affords interested persons two opportunities to comment publicly on potential legislation:

    • First the public may testify at an initial meeting when the SRC receives a memorandum describing the genesis, scope, and intent of the proposed bill. The SRC then votes whether to have a draft bill prepared.
    • Second, for proposals for which the staff writes drafts, the public may testify at a subsequent meeting when the SRC votes whether to recommend bills for introduction. An affirmative vote from at least five members of the SRC is required for a bill to be introduced, ensuring that every bill has bipartisan support.

    The staff includes memoranda and bill drafts with the SRC agendas, which are posted on the SRC’s website one week in advance of a meeting date. And of course, the chance to weigh in on bills doesn’t end with the committee. Each introduced bill is debated and vetted through normal how-a-bill-becomes-a-law legislative procedures.

    Bills approved in 2016. Every bill recommended for introduction from the 2016 SRC proceedings received unanimous committee approval. The breadth of bill subjects typifies the SRC’s ability to consider a wide range of topics, including:

    • Repealing obsolete congressional and state legislative district laws;
    • Aligning statutory reporting requirements with section 24-1-136 (11), C.R.S.;
    • Updating certain outdated references to standards promulgated by the American National Standards Institute;
    • Removing “ghost statutes” inadvertently left on the books in 2016; and
    • Implementing recommendations received from the Department of Education and the Office of the State Auditor to modernize and correct various statutes related to those entities.

    To read the full text of the approved bills, please see the SRC’s 2016 Annual Report and the upcoming supplement on the SRC’s website.

    Looking ahead. Although the SRC expects to conduct the majority of its work during legislative interims, the committee will meet early in the 2017 session (date TBD) to select a new chairperson and vice-chairperson; to continue analyzing bill drafts that reconcile reporting requirements with section 24-1-136 (11), C.R.S.; and to consider a fix to the “Uniform Trust Decanting Act.”

    Among the topics the SRC will discuss in the 2017 interim is a comprehensive bill to modernize, without substantively changing, the transfer terminology used in the Colorado Revised Statutes relating to the organization of state governmental agencies under the “Administrative Organization Act of 1968.”

    Additional information. To learn more about the SRC, please contact a committee member or send an e-mail to SRC staff at StatutoryRevision.ga@coleg.gov. You may also check out a brief video detailing the SRC posted on the Colorado Channel’s website.

  • United States Supreme Court Effectively Upholds Colorado Internet Sales Tax Law

    by Esther van Mourik

    When you buy a present for your friend at a store in Colorado, the retailer collects the sales tax on that purchase and remits that amount to the Colorado Department of Revenue. If you buy the same item online from a retailer that does not have a brick and mortar store in the state, you are personally responsible for paying the same amount of tax (now called a use tax instead of a sales tax) to the Department of Revenue. Generally speaking this is because of the United States Supreme Court’s interpretation of the United States Constitution: To protect interstate commerce, a state can’t require retailers that don’t have a brick and mortar presence in the state to collect sales tax on its behalf. Instead, the responsibility for getting the tax money to the state falls to individual purchasers.

    Because many people aren’t aware of the responsibility to pay the use tax, Colorado is missing out on a lot of tax revenue. And because the economy is rapidly changing so that more people are buying presents (and other “tangible personal property”) online from retailers without brick and mortar stores in the state, the lost revenue effect is even greater. Estimates indicate that the state’s annual lost revenue due to online sales exceeds $150 million.

    In 2010, the General Assembly passed House Bill 10-1193, the so-called “Amazon law,” a reporting requirements statute that compels retailers who are not collecting sales tax to report a number of things to both the Department of Revenue and their Colorado customers. The law was immediately challenged in court and has been in litigation for the past six years. A state court also enjoined the enforcement of the new law while it was being litigated in federal court.

    On February 22, 2016, the 10th Circuit Court of Appeals issued an opinion upholding the constitutionality of House Bill 10-1193. On Friday, December 9, 2016, the United States Supreme Court declined to hear an appeal of the Court of Appeals decision. By declining to hear the appeal, the Supreme Court effectively affirmed the constitutionality of the law. This means that the Department of Revenue can start enforcing the requirements in House Bill 10-1193. Many news agencies have reported on this decision. You can read some of those articles here, here, here, and here.

    House Bill 10-1193 requires retailers who do not collect Colorado sales tax to do three things:

    1. Notify Colorado purchasers that sales or use tax is due on certain purchases made from the retailer and that Colorado requires the purchaser to file a sales or use tax return;
    2. Send notice to all Colorado purchasers by January 31 of each year showing certain information that the Department of Revenue will require by rule, including the total amount the purchaser paid for Colorado purchases in the previous calendar year. The notice must include, if available, the purchase dates, the purchase amounts, and the category of each purchase, including, if the retailer knows, whether the purchase is exempt or not exempt from taxation. This notice must also state that Colorado requires the purchaser to file a sales or use tax return and pay the sales or use taxes on certain Colorado purchases that the purchaser made from the retailer.
    3. File an annual statement with the Department of Revenue by March 1 of each year for each Colorado purchaser that shows the total amount the purchaser paid for Colorado purchases in the last calendar year.

    If the retailers who do not collect Colorado sales tax fail to do the three things listed above, those retailers are subject to fines for each failure. The Department of Revenue is trying to determine when the law will take effect. Hampering that decision is the fact that the state court injunction is still in place and must be vacated before the Department of Revenue can enforce the law. Many articles in the media that discussed House Bill 10-1193 appeared to argue that the law was intended to compel retailers who do not collect sales tax to voluntarily start collecting. While that intention is not clearly established in the law, it remains to be seen how retailers will respond when the law takes effect.

    There are efforts by other states, particularly in South Dakota, to require retailers that do not collect tax on internet sales to start collecting. Legislation of this type is a direct challenge to the United States Supreme Court’s constitutional interpretation that states cannot require out-of-state retailers to collect sales tax. So while the United States Supreme Court’s decision not to hear the Colorado case represents movement on this issue of online sales taxation, many questions remain to be answered. Stay tuned!

  • A New Citation Format for the Colorado Revised Statutes

    by Tom Morris

    While trying to read a statute to unravel its meaning, have you ever felt dismayed or sidetracked when you came across a phrase such as this: “as specified in sub-subparagraph (D) of subparagraph (III) of paragraph (g) of subsection (4) of this section”? That’s a lot of words—what is a “sub-subparagraph”, anyway?—and understanding them is made even more difficult due to the fact that they’re presented in reverse order from how most of us probably think. It’s as if, to describe how much money was being appropriated, we said “19 cents, 235 dollars, 452 thousand dollars, and 2 million dollars” instead of “2,452,235.19 dollars”. Surely, a better format for statutory references is possible.

    Well, the Office of Legislative Legal Services has decided that a better format is possible, and, in drafting bills for the 2017 regular session, we have already started using it.

    First, it’s important to understand the scope of the changes. When a statute refers to a portion of a different statute, that’s called an “external” reference, and we don’t use the format described above. Instead, if you’re in a statute other than section 24-30-122, the reference would previously have been something like “section 24-30-122 (4)(g)(III)(D), C.R.S.”. The main difference in external references going forward is that we’re dropping the “C.R.S.” (the abbreviation for “Colorado Revised Statutes”). We figure that, if you’re reading title 8, you know when you see a reference to section 24-1-104, it’s referring to a section in another title of the Colorado statutes and that we’re not straying down the freeway and into another state’s statutes.

    Second, we used to include the number of a title or article only when the reference was located in a title or article other than the one being referenced, but we would always include the part number regardless of whether the reference was in or out of that part. We will now treat titles and articles as we currently treat parts: We’ll always include the article and title number (so references to “this article” in statute now become “this article 12,” for example).

    The most significant changes we’re making relate to “internal” references. For example, if the reference is located in section 24-30-122 and the reference is to a portion of that same section, that’s an internal reference. Instead of listing the various types of C.R.S. subdivisions (sub-subparagraph, subparagraph, paragraph, and subsection) in reverse order, we’ll use a format similar to that used for external references. So if you’re in section 24-30-122, the reference will usually be “subsection (4)(g)(III)(D) of this section”.

    There are a few things to note about this new format. First, we’re no longer going to refer to sub-subparagraphs, subparagraphs, or paragraphs; every internal reference to a C.R.S. subdivision will be to a “subsection”. Second, for both external and internal references, we will no longer put a space between the parentheses—so it will be “(2)(a)” rather than “(2) (a)”. Third, if the internal reference is to the same subdivision where the internal reference is located, we will include the complete string of higher-level subdivisions in the reference. For example, we used to write “this paragraph (d)”, but now we’ll write “this subsection (3)(d)”. Finally, every internal reference to a different subdivision will end with “of this section”. We used to write “paragraph (a) of this subsection (1)”, but now we’ll write “subsection (1)(a) of this section”.

    Here’s a table that summarizes our old and new citation formats for internal references:

    Format Before 2017 Format Beginning in 2017
    this paragraph (d) this subsection (3)(d)
    this sub-subparagraph (C) this subsection (1)(e)(II)(C)
    paragraph (a) of this subsection (1) subsection (1)(a) of this section
    subparagraph (III) of paragraph (b) of this subsection (4) subsection (4)(b)(III) of this section
    sub-subparagraph (A) of subparagraph (IV) of paragraph (c) of subsection (2) of this section subsection (2)(c)(IV)(A) of this section

    Finally, we will make these changes only prospectively and only in those sections of statute that are included in bills; we will not update the citation format for the entire C.R.S. through the publications process. All new citations will follow the new format. The bill drafters, subject to the sponsors’ preferences, will update existing references in the same way that other grammatical or terminology updates to existing statutes are made.

    So there will be some inconsistency in the C.R.S. in how our statutory references are phrased for quite some time. But we’ve concluded that using a citation format that is as specific and accurate as our current system—and that uses less terminology and is more concise, easier to understand, and more internally consistent—is an easy choice. We hope that you’ll agree!

  • Revisor of Statutes Ensures Access to Colorado’s Laws

    by Julie Pelegrin

    As we explained a couple of weeks ago, the Office of Legislative Legal Services is responsible not only for writing bills and amendments, but also for publishing the statutes. But these functions—drafting and publishing—have not always been housed in the same office or even in the same branch of government.

    The history of publishing statutes in Colorado is long and complicated. Starting in 1861, the Territorial Legislature published the session laws after each biennial legislative session, which contained all of the bills the Legislature passed. Until 1868, if someone wanted to amend a bill that passed in an earlier session, he had to amend the bill as it appeared in the session laws.

    The first consolidation of the state’s laws occurred before Colorado became a state. In 1868, the Territorial Legislature authorized consolidation of the general statutes, all of the laws enacted since 1861 with any amendments to those laws, arranged into 90 chapters, alphabetic by topic. The Territorial Legislature then adopted this consolidation, making it the “positive law” of the state, which means that a person could cite to the section of consolidated statute, rather than having to cite to the act as it was published and later amended in session laws.[i]

    The General Assembly voted to reconsolidate and republish the laws at various times: The General Laws of 1877; the General Statutes of 1883; Mills’ Annotated Statutes of 1891; the Revised Statutes of 1908; the Compiled Laws of 1921; and the Colorado Statutes Annotated of 1935. Each of these, except the Mills’ Annotated Statutes, was created with the General Assembly’s official authorization, but there was not a specific official or office that was consistently responsible for codifying and republishing Colorado’s laws on a regular basis.

    Until 1951.

    That year, the General Assembly adopted House Bill No. 201. Like earlier acts, this act provided for revising and codifying the laws of the state, but with this act, the General Assembly for the first time took a longer view. It created the Committee on Statute Revision within the Judicial Department, chaired by the Chief Justice of the Colorado Supreme Court. The committee consisted of the Attorney General, two Senators, and two Representatives.

    2012 Session Laws of Colorado/photo by Ashley Zimmerman

    The act also created the position of Revisor of Statutes. The act directed the Committee to appoint an attorney to this position and to oversee his work. The Revisor could hire attorney associates and clerical staff to assist him in collating, compiling, editing, and preparing the statutes; publishing the statutes and other important documents like the state and federal constitutions; and creating source notes, annotations, an index, and comparative tables of prior compilations. All of this work was to be completed and submitted to the General Assembly by the 1953 legislative session.

    H.B. No. 201 also directed the Revisor, at the end of each legislative session after 1953, to annotate, arrange, and prepare pocket parts or supplements for the 1953 revision of the statutes. The Office of the Revisor of Statutes was now a continuing enterprise, responsible for maintaining the accuracy of the published statutes on an annual basis. The General Assembly also directed the Revisor to assist the Legislative Reference Bureau (in the Attorney General’s Office) in drafting bills and amendments and engrossing and enrolling bills.

    Finally, a permanent process existed to ensure the published statutes kept up to date. But in 1958, 1959, and 1960, the office fell behind in publishing the pocket parts. So, in 1961, the General Assembly directed the Revisor of Statutes to publish a new recodification, incorporating all of the changes since 1953 into a single set of volumes: the Colorado Revised Statutes 1963. At this time, the Revisor was still working out of the judicial branch.

    In the mid-1960’s, the General Assembly undertook a study of the organization of Colorado’s state government. In 1968, it passed Senate Bill No. 1, concerning the administrative reorganization of state government, which completely reorganized the executive branch of government, and moved the Legislative Drafting Office (LDO) from the Attorney General’s Office to the legislative branch. Then, in 1969, the General Assembly passed Senate Bill No. 396, which created the Office of Revisor of Statutes (ORS) in the legislative branch. Both the LDO and the ORS were under the direction of the Committee on Legal Services.

    Finally, in 1988, the General Assembly passed House Bill No. 1329, which combined the LDO and the ORS into the Office of Legislative Legal Services (OLLS). In combining the offices, the General Assembly named the Director of the OLLS the ex officio Revisor of Statutes, although the Director was authorized to appoint another attorney to serve as the Revisor. This has been the Director’s practice since 1988. The current Revisor of Statutes, Jennifer Gilroy, was appointed March 26, 2004, and is the first woman to serve in this capacity.

    The Revisor’s duties have not changed significantly over time. Under the direction of the Committee on Legal Services, the Revisor must compile, edit, arrange, and prepare for publication the Colorado statutes, the state and federal constitutions, other significant documents, an index of the statutes, and tables comparing the current statutes with previous compilations. Each section of the statutes must have a source note, which provides the history of the section, and annotations of any cases interpreting the section. In publishing the statutes each year, the Revisor, with assistance from legislative editors and attorneys in the OLLS, can correct errors in grammar and punctuation, and may identify other errors or inconsistencies that may be fixed in a revisor’s bill introduced in the next legislative session.

    The most important recent changes to the published statutes are a result of technology. In addition to publishing the entire set of statutes each year, the Revisor oversees the electronic publication of and access to the Colorado Revised Statutes on the internet, on disc, and through e-books.

    The last time the General Assembly recodified and reorganized the entire Colorado Revised Statutes was in 1973. With that recodification, it adopted a numbering convention that provides a great deal of flexibility and room for expansion in the statutes. In the last legislative session, the General Assembly recreated the Statutory Revision Committee to address defects and anachronisms in the law. These provisions make another complete recodification of the statutes less likely.

     

    ________

    [i] See “Colorado Statutes: Past, Present, and Future” J. Myron Jacobstein, 33 Rocky Mountain Law Review, pg 36 (1960-61).