Colorado LegiSource

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

Author: olls

  • When Does a Legislator have Standing to Sue?

    By Sharon Eubanks

    In the last two LegiSource articles, we’ve talked about what a citizen must do to show that he or she has standing to sue someone to enforce a statute or to sue the government to enforce a statute or the constitution. What if the person who wants to sue is a legislator? Does a legislator have standing to sue in his or her capacity as a legislator to challenge language in the constitution? There is a case in federal court right now that is trying to answer that question.

    In May of 2011, a group of legislators, school board members, and other taxpayers filed a lawsuit in federal court claiming that the Taxpayer’s Bill of Rights (TABOR) violates several clauses of the United States Constitution – including the clause that guarantees to every state a republican form of government – as well as certain federal statutes. This group asserts that, by removing the taxing power of the Colorado General Assembly, TABOR renders the General Assembly unable to effectively fulfill its legislative obligations in a representative democracy and a republican form of government. In July of 2015, we posted an article that more fully explains the Kerr v. Hickenlooper lawsuit.

    Although Kerr v. Hickenlooper is over five years old, a court has yet to consider any of the claims raised in the case. The case has been stuck on the issue of whether the legislators have standing to bring the lawsuit. As you may recall, to have standing to sue, a person must demonstrate that she has been harmed by the person she’s suing and that she has a right to sue for that harm. In this case, the legislators must show that TABOR has harmed an interest that they have the authority to protect. If they can’t show that, the lawsuit will be dismissed.

    In July of 2012, the federal district court held that the legislators did have standing to bring the lawsuit, and the Tenth Circuit Court of Appeals agreed. The matter then was appealed to the United States Supreme Court.

    About a year ago, the Supreme Court issued a grant, vacate, and remand (GVR) order in the case. The order basically sent the case back to the Tenth Circuit Court of Appeals to reconsider whether the legislators have standing based on the Supreme Court’s decision in a case called Arizona State Legislature v. Arizona Independent Redistricting Commission et al, 576 U.S. ___ (2015). The Arizona decision considered whether the Arizona State Legislature had standing to challenge the constitutionality of a redistricting commission that was created by a ballot initiative to draw congressional districts. In that case, the Court held that the Legislature did have standing because the Legislature, as an institution, had an interest in redrawing the congressional districts for Arizona that the legislature could sue to protect. In this case, the Legislature, as an institution, brought the suit as the plaintiff.

    On June 3, 2016, the Tenth Circuit Court of Appeals ruled that the legislators in Kerr v. Hickenlooper do not have standing to bring the lawsuit.

    Based on the Arizona decision, the court of appeals determined that the first question in deciding whether a group of legislators has standing is to decide whether the legislators are claiming an institutional injury. This is an injury to the power of the legislature as a whole rather than an injury to an individual legislator’s interest. The court of appeals concluded that individual legislators do not have standing if they are alleging an institutional injury and not an individual injury.

    The court of appeals then looked to see whether the legislators in Kerr v. Hickenlooper alleged injury to an institutional interest. The court found that they did because the legislators’ claim is based on the loss of legislative power to raise taxes, which impacts all members of the General Assembly equally.

    The court of appeals then asked whether the legislators who are suing have authority to represent the Colorado General Assembly as an institution and found that they do not. The legislators are pursuing their claims in their individual capacities and not as representatives of the General Assembly. By contrast, in Arizona, the Arizona Legislature as an institution filed the suit. Since they are not authorized to represent the General Assembly or either the House of Representatives or the Senate, the court of appeals determined that the legislators are not institutional plaintiffs. And that means they do not have authority to sue for an injury to an institutional interest.

    As a result, the court concluded that it must reverse its previous decision and found that the individual legislators in Kerr v. Hickenlooper do not have standing because they are trying to protect an institutional interest but they do not have authority to represent the entire institution. The court then sent the case back to the federal district court.

    The group of legislators, school board members, and other taxpayers filed a petition for rehearing with the Tenth Circuit Court of Appeals on July 8, asking the court to reconsider its decision based on additional arguments made by the group. The court denied the petition. At this point, it appears the school board members and other taxpayers who brought the suit will now try to establish standing to sue on remand to the federal district court. Stay tuned for further updates.

  • Suing the Government: Taxpayer Standing

    by Julie Pelegrin

    In addition to telling people what they can and cannot do, the statutes may tell a state agency or a local government what it must do. If the state agency, or a local government, or a government official does not comply with the statute, can a citizen sue the government or the official?

    Only if the citizen has standing to sue.

    As discussed in last week’s article, to bring a civil suit, a person must be able to demonstrate actual injury to a legally protected interest. If a citizen thinks the state or a local government has failed to follow the statutes or the constitution, the citizen must demonstrate that the statute or constitutional provision creates a legally protected interest for the citizen and that the citizen is harmed by the state’s or the local government’s violation of that interest.

    In these types of cases, the most important question is whether the citizen is suing to enforce a statute or a constitutional provision.

    If the citizen is suing to enforce a statute, the test for standing is the same as when the citizen is suing another person. As you may recall, to sue Mr. Adams, Mr. Jefferson had to show actual injury to a legally protected interest (in our example last week, he got sick eating Mr. Adams’ eggs). If the statute did not say Mr. Jefferson had a private right of action, Mr. Jefferson had to meet a three-part test: He had to show that he was within the class of people who were intended to benefit from the  statute (the general public, who should be warned that Mr. Adams’ eggs could be contaminated); that the legislature intended to create a private right of action (in our case, the act requiring notice of possible contamination didn’t specifically grant a private right of action); and that an implied right of action was consistent with the purposes of the statute. The same test would apply if Mr. Jefferson wanted to sue the Commissioner of Agriculture for failing to inspect Mr. Adams’ farm.

    A recent Colorado Supreme Court case, Taxpayers for Public Education v. Douglas County School District, considers whether a citizen has standing to enforce a statute. In this case, parents living in the Douglas County School District claimed that the school district violated the “Public School Finance Act of 1994” by allowing parents to use the school district’s public money to pay for private school. The Court held, however, that the parents did not have standing to sue to enforce the Act. The Act does not specify how it is enforced, so the Court applied the test explained above.

    The Court found that the parents were within the class of persons that the Act is supposed to benefit, but the Court did not find that the General Assembly intended to create a private right of action. Also, because the Act authorizes the State Board of Education to adopt rules, the Court concluded that the General Assembly actually decided not to create a private right of action because the State Board can enforce the Act through rules. Finally, the Court held that a private right of action is not consistent with the purpose of the Act, which is to fund public education. The Court said that, to accomplish this purpose, the State Board and the Department of Education need flexibility to calculate, administer, and distribute the funding under the Act. Allowing citizens to sue every time they disagree with an agency’s decisions would impede the Department’s ability to administer the Act.

    The analysis would be different if the parents had sued to enforce a constitutional provision. When it comes to enforcing the state constitution, the courts in Colorado recognize the doctrine of “taxpayer standing.” This is a broader doctrine of standing, which essentially says that a taxpayer is injured whenever the government – state or local – fails to comply with the state constitution. The Court assumes there is always a private right of action to enforce the constitution, and it does not apply the test explained above.

    For example, the Colorado Supreme Court held that a real estate broker, a paint company, and an oil company had taxpayer standing to challenge the state’s transfer of money from cash funds to the general fund and its use of that money for general government purposes. The plaintiffs alleged that these actions violated the provisions of section 20 of article X of the state constitution (TABOR). The Court held that every taxpayer has a legally protected interest in ensuring that the government complies with the constitution. The government’s alleged violation of the constitution is an injury to the taxpayer’s interest, so the plaintiffs had standing.

    Similarly, when Mr. Conrad sued the City and County of Denver for placing a nativity scene on the steps of the city and county building at Christmas, he claimed a violation of section 4 of article II of the state constitution, which prohibits governmental preference of a religion and prohibits the government from forcing a citizen to support a particular religion. The Court held that Mr. Conrad had standing because, as a taxpayer, he was directly injured by Denver’s alleged failure to comply with the constitution.

    So why does a court assume a taxpayer is harmed by a violation of the constitution and can always sue the government, but if a taxpayer is harmed by the government’s violation of a statute, she can sue the government only if the statute says she can? Don’t citizens have a right to require the government to comply with the law, whether it’s statutory or constitutional?

    It’s a separation of powers issue. The General Assembly controls the language of the statute, and the General Assembly’s intent controls the application of the statute. If the statute doesn’t give a citizen a private right of action to enforce the statute, it’s because the General Assembly did not intend to give it. And the courts, in interpreting a statute, are bound by the General Assembly’s intent.

    The constitution, however, is approved by the people, not the General Assembly, and the General Assembly does not control how it is applied. The court will therefore use broader latitude in allowing citizens the opportunity to sue for alleged violations of their constitution.

  • Who Enforces the Statutes?

    by Julie Pelegrin

    Statutes often tell people, businesses, and organizations what they must or cannot do. But many statutes do not include an enforcement mechanism. Criminal statutes carry a penalty for a violation, and some civil statutes include a fine structure for violations. But in many cases, the law doesn’t explain what happens if someone does not follow the law. So the question arises, “Can an individual sue someone who violates this law?”

    The answer lies in the issue of standing. If Mr. Jefferson wants to sue Mr. Adams – for anything – he must have standing to sue, which means he must have actually suffered an injury to a legally protected interest. In plain English: Mr. Jefferson must show that he suffered an injury that he is entitled to sue Mr. Adams for.

    Standing Text Box 1

    If Mr. Adams fails to comply with a statute and this results in an injury to Mr. Jefferson, then Mr. Jefferson may have standing to enforce the statute by suing Mr. Adams and forcing him to comply with the statute.

    Proving standing is a preliminary requirement for Mr. Jefferson’s lawsuit. If he cannot prove actual injury to an interest that the statute says he can protect, the court will dismiss the case without considering whether Mr. Adams actually did or did not injure Mr. Jefferson. This is necessary to protect the separation of powers. When the court exercises its authority, it often means the court is disapproving or annulling an action taken by the legislative or executive branch. So the court must be careful to take action only when there is a specific person making a claim based on a direct harm or interest that the person is entitled to protect.

    For Mr. Jefferson to enforce a statute, he must demonstrate that the statute authorizes him to sue Mr. Adams to protect an interest created in the statute. Some statutes can be enforced by private citizens and some cannot. It depends on whether the statute creates or implies a private right of action — a lawsuit filed by a person — to enforce the statute.

    Standing Text Box 2

    Some statutes specify that an executive branch agency will enforce the requirements of a statute, and a private person cannot enforce the statute. For example, only the Department of Labor and Employment can enforce the statute that requires a public works project funded by public money to use Colorado labor. And an individual cannot sue a hospital to enforce the statute that requires a hospital to provide information and training for a designated caregiver.

    Other statutes specifically create a private right of action for enforcement. For example, a citizen can file a complaint with the Secretary of State alleging a violation of the voter registration statutes, and the Secretary of State and the Attorney General may act on the complaint. But if the Attorney General does not sue on the complaint within 120 days, the citizen may file a civil action.

    But in most cases, the statute is silent as to whether an individual can enforce the statute. If the statute that Mr. Adams violated doesn’t say Mr. Jefferson can sue to enforce the statute, how will the court decide whether Mr. Jefferson really has a legally protected interest in the statute?

    The court will ask three questions:

    1. Is Mr. Jefferson within the group of persons who are intended to benefit from the statute?
    2. Did the legislature intend to create, even though it’s only implicit, a private right of action?
    3. Is an implied private right of action consistent with the purposes of the legislative scheme?

    Let’s suppose that Mr. Adams is a farmer who sells milk, eggs, and butter. The Warnings Against Contaminated Dairy (WACD) Act requires a farmer who sells milk, eggs, or butter to warn the buyer that the products could be contaminated. The WACD act is silent as to who enforces this requirement. Mr. Adams sells milk, eggs, and butter to Mr. Jefferson without mentioning possible contamination. After eating breakfast the next morning, Mr. Jefferson suffers a bad case of food poisoning.

    As we stated earlier, Mr. Jefferson wants to sue Mr. Adams. The court will first ask, “Is there injury?” Clearly. Next, “Is there a legally protected interest?” Well…the WACD act requires Mr. Adams to issue a warning, but it doesn’t specifically say that Mr. Jefferson can sue him if he doesn’t. So, the court will consider the three questions.

    Arguably, the act is intended to benefit persons who buy milk, eggs, and butter. As a buyer, Mr. Jefferson should be benefited by the act. The legislature could have intended to create a private right of action because the likelihood that a buyer would sic his lawyers on the seller every time the seller failed to give the warning is a strong incentive for the seller to comply with the act. Finally, assuming the act is intended to protect the public from accidentally buying contaminated food, allowing someone to sue to enforce the act is completely consistent with the purpose of the act.

    So Mr. Jefferson probably has standing to sue Mr. Adams to enforce the WACD act. That doesn’t mean Mr. Jefferson will win the suit; he may have gotten sick from the oysters he ate at the tavern the night before. But he has standing to bring the suit.

    What if a person wants to bring a suit to require the state or a local government or a public official to follow a statute? Or to comply with the constitution?

    We’ll answer those questions in next week’s post.

  • Title 12 Recodification: A Study in Organization

    Editors’ note: Although the LegiSource is currently on hiatus, we are making an exception and posting today’s article on the Title 12 Recodification Project to provide timely notice of the meetings scheduled for June 29 and 30. Regular postings for LegiSource will resume July 7.

    by Thomas Morris

    If you’re like me, you rely to some degree on a filing system to store and, more importantly, retrieve documents that are important to you. How well this works for you depends not only on how the system is set up but also how you actually store documents over time. Although it’s hard to find what you’re looking for in a poorly designed organizational system, few things are harder to find than a document that has been misfiled. Who would think to look for a recipe for soup in a folder labelled “soap”?

    In contrast, a well-designed system includes only subjects that relate to the overall system and organizes those subjects in an intuitive way. This reduces the possibility of misfiling a document and increases the likelihood that you’ll be able to find what you’re looking for.

    Similarly, although the original organizational structure for title 12 of the Colorado Revised Statutes (regarding “Professions and Occupations”) may have worked well initially, over time several problems have emerged:

    • Almost one-third of the title’s 104 articles have been repealed, but the numbers for those articles cannot be reused;
    • Another one-third of the articles have been squeezed between previous articles (such as 43.2, 43.3, 43.4, etc.) in an effort to add new articles in alphabetical order;
    • The title is organized into a series of “General” articles, then a series of “Health Care” articles, and finally another series of “General” articles;
    • Many articles contain duplicative language that could be consolidated into a general or common provisions article that could apply broadly to all professions and occupations; and
    • Title 12 addresses not only laws governing professions and occupations regulated by the department of regulatory agencies but also other areas of law that are not truly a “profession or occupation”, affecting seven principal state departments, the judicial branch, local governments, and medical schools.

    These shortcomings make the title unnecessarily voluminous, repetitive, and difficult to amend, understand, and administer. For example, title 12 includes an article about dead human bodies, including a part 1 governing anatomical gifts and a part 2 governing unclaimed dead human bodies. Certainly, no one makes a profession or occupation in making anatomical gifts or in claiming dead human bodies. So why are these laws codified in title 12? It probably makes more sense to put them in the laws governing medical facilities (which receive anatomical gifts) or medical schools (which receive unclaimed bodies).

    To redress these problems, the General Assembly recently enacted Senate Bill 16-163. The act directs the Office of Legislative Legal Services (OLLS) to conduct a two-year study of an organizational recodification of title 12. What does an “organizational recodification” mean? To recodify means to rearrange and reorganize a system of laws. In the context of title 12, a recodification means that the laws in title 12 will be repealed and reenacted; laws that may have been “misfiled” in title 12 may be “refiled” in a more appropriate title. As expressed in the act, § 2-3-510 (3) (a), C.R.S., “organizational” means that:

    Fundamentally, the recodification should be organizational and nonsubstantive, and any substantive provisions that may be included in the proposed legislation should be strictly limited to those that are necessary to promote the public purposes of an organizational recodification as specified in this section, such as:
    (I) Conforming similar provisions to achieve uniformity, eliminate redundancy, and allow for the consolidation of common provisions; and
    (II) Eliminating provisions that are archaic or obsolete;

    During the 2016 interim, the OLLS will solicit input from state and local government agencies, representatives from professions and occupations regulated under title 12, and other interested members of the public. During the 2017 interim, the OLLS, working with the stakeholders, will start to formulate specific recodification proposals and begin writing draft legislation. By December 31, 2017, the Committee on Legal Services must decide whether to approve legislation to recodify title 12 for introduction in the 2018 regular session.

    The first meetings for the study have been scheduled for June 29 at 1 p.m. and June 30 at 9 a.m., both in Room 271 of the State Capitol. These are the initial, introductory organizational meetings and the agendas, which are available on the study’s web page, are identical. We encourage all interested parties to attend one of these meetings. Hopefully, by the end of the 2018 regular session, Colorado will have better-organized laws regulating professions and occupations!

  • One Hundred Twentieth Legislative Day Brings Session to a Halt – Ready or Not

    by Julie Pelegrin

    With the advent of the 120th legislative day, the Seventieth General Assembly adjourned sine die Wednesday evening. The 2016 legislative session was busy with the introduction of 468 House bills – the most in a session in recent memory – as well as 217 Senate bills, nine concurrent resolutions, 68 joint resolutions, and five joint memorials. Of that number, they passed 387 bills, 178 of which the Governor has already signed. The Governor must act by June 10 on the remaining 209 bills that passed or they will become law without his signature. So far, the Governor has not vetoed any of the bills passed this year.

    The 2016 legislative session saw many long committee hearings (the last House Judiciary Committee meeting began on May 5 and didn’t adjourn until 4:48 a.m. on May 6) during which the legislators debated many significant issues. They considered 20 bills that addressed marijuana in some way, 94 bills on education, and 61 bills that had something to do with taxes. They passed bills to legalize rain barrels; to address the sentences for juveniles who were tried as adults and convicted of a class 1 felony; to eventually allow for the sale of liquor in grocery stores; to change the procedures for emergency 72-hour mental health holds; and to increase the transparency and security around student personally identifiable information collected by the state and by school districts.

    On top of all that, the House and the Senate adopted a balanced state budget of about $27 billion for fiscal year 2016-17, and they enacted a school finance bill that increased the total program funding for public education to a statewide average of $7,425 per student – $112 more than in fiscal year 2015-16.

    The House and the Senate managed to complete almost all of the items on their calendars, unlike past years when several bills and resolutions expired at the final gavel. Items often die on the calendar because section 7 of article V of the state constitution requires the regular legislative session to end every year no later than midnight on the 120th legislative day, regardless of whether the legislative work is completed.

    This has not always been the case. The 120-calendar-day-limit on regular legislative sessions is a relatively recent development.

    The Colorado constitution originally required the General Assembly to meet at “12 o’clock, noon” on the first Wednesday in January in 1876 and again in 1879, and then every other year “forever thereafter, and at other times when convened by the Governor.” Once convened, the legislators could stay as long as they liked. When they convened in regular legislative session every other year, they could consider bills on any topics they thought necessary or important. And there were no limits on how many bills legislators could introduce in each legislative session.

    But as we all know, nothing is forever. Things changed after about 75 years.

    At the general election in 1950, the people of Colorado passed House Concurrent Resolution 11, changing the session times for the General Assembly. Starting in 1951, the General Assembly convened the regular legislative session at 10:00 a.m. on the first Wednesday after the first Tuesday in January every year. There was still no limit on how long they could meet, but in even-numbered years legislators could only enact bills that raised revenue or made appropriations or that addressed subjects that the Governor identified in writing within the first 10 days of the session. And there were no limits on the number of bills introduced.

    In 1977, the General Assembly first limited the number of introduced bills. House Joint Resolution 1016 amended the joint rules to limit each legislator to introducing six bills during the session, not counting appropriations bills or bills that a legislator requested by December 1 and introduced by the first day of the session. A legislator could ask permission from the delayed bill committee in his or her chamber to introduce additional bills.

    In 1982, the voters first limited the length of a legislative session with the adoption of Senate Concurrent Resolution 1. This amendment limited the regular legislative sessions in even-numbered years to 140 calendar days. But the legislators could consider any topics they thought necessary or important during those 140 days; the voters removed the Governor’s power to control the legislative agenda. Legislative sessions in odd-numbered years could still continue as long as the legislators thought necessary. The legislative deadline schedule for these years contemplated at least 175-day sessions.

    In 1984, the General Assembly further limited the number of bills: Six bills during the legislative sessions in odd-numbered years and four bills during the legislative sessions in even-numbered years. A legislator could also introduce an unlimited number of appropriations bills and up to four interim committee bills, but the General Assembly eliminated the exception for pre-filed bills.

    Finally, in 1988, the voters approved another Senate Concurrent Resolution 1, requiring the General Assembly to meet every year, no later than the second Wednesday of January, and adjourn no more than 120 calendar days later. The “calendar day” requirement means that, once the regular legislative session starts, every day counts whether the General Assembly meets or not. In 1990, the General Assembly amended the joint rules to limit each legislator to five bills introduced each regular legislative session, not counting interim committee bills or bills approved by certain statutory committees.

    So far as we know now, the legislators will not convene again until Wednesday, January 11, 2017, when the members of the 71st General Assembly take office. But there’s always a chance the 70th General Assembly might reconvene during 2016. One never knows when the Governor or two-thirds of the legislators may decide to call a special legislative session…

    Sine Die

    Correction: May 13, 2016
    An earlier version of this post misstated the total number of passed by the General Assembly as 385. The Correct number is 387, and accordingly, the Governor must act by June 10 on the remaining 209 bills (not 207) that passed or they will become law without his signature.

  • When Private Commerce Meets the Public Good: Impairing the Obligations of Contracts

    by Jery Payne

    Code of HammurabiIn about 1789, a group of people in Georgia and South Carolina formed a secret society called the Combined Society. They wanted to make money in land speculation. In the mid-1790s, they approached the governor of Georgia and many state legislators with cash and promises in hand. Georgia began as a penal colony, and they apparently hadn’t gotten it out of their system yet. The bribes worked.

    The Georgia legislature passed the Yazoo Land Act of 1795, which authorized the governor to sell 35 million acres of land. The governor ended up selling most of what is now Mississippi to land speculators for $500,000. That comes out to about 1.5 cents per acre.

    The voters of Georgia were not pleased, so they voted the scoundrels out of office. And the new legislature set about cleaning up the mess. They repealed the bill that allowed the sale. They also passed a bill voiding the original sale. They wanted the land back.

    This made subsequent buyers a bit grumpy. One buyer, Robert Fletcher, sued the speculator, John Peck, from whom he had bought the property. The case worked its way up to the United States Supreme Court.

    In Fletcher v. Peck, the Supreme Court held that the state law voiding the sale was unconstitutional. It was the first time the Court had ruled a state statute unconstitutional. The ruling was based on the obligation of contracts clause: “No State shall…pass any…Law impairing the Obligation of Contracts….” Article 1, Section 10 of the United States Constitution.

    The court ruled that this provision forbids a state from rescinding a sale that was legal—no matter how unscrupulous—when it was made.

    In another case, Ogden v. Saunders, the court found that the constitutional drafters included the provision because:

    The power of changing the relative situation of debtor and creditor, of interfering with contracts … had been used to such an excess by the state legislatures as to break in upon the ordinary intercourse of society, and destroy all confidence between man and man. The mischief had become so great, so alarming, as not only to impair commercial intercourse, and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith.

     

    Although it makes sense to say that politicians shouldn’t try to get votes by promising to let us out of paying our debts, it eventually became clear that this provision can’t be taken at face value. It can’t apply to every contract because anything could be the subject of a contract. People have contracted for another person to commit murder. Taken literally, no legislative power is beyond its grasp.

    I can guess what some of you are thinking: “No, it only stops legislatures from interfering with existing contracts. A contract that is made after a law is passed is still subject to the law.” Fair enough. This line of reasoning makes sense. It was the first distinction the courts found significant. To this day, the courts are more likely to overturn a law that affects existing contracts.

    And yet, the words of the contracts clause don’t actually draw that distinction. Even with the courts confining this provision to retrospective effect, they realized that this reading was still too broad. What if a new pollutant has some serious side effect like turning everyone’s hair green? And what if a company had contracted to dispose of the pollutant in Colorado waters? Must the state stand aside and let all our hair turn green?

    Here’s an actual case from 1987: Keystone Bituminous Coal Ass’n v. DeBenedictis. A coal company had the rights to mine coal under a town. The state passed a statute saying coal mining operations had to leave enough coal to keep the towns above from falling down into a black pit. The coal company didn’t like the fact that this meant their investment would probably lose money. So they sued.

    The coal company wasn’t heartless; they didn’t intend to actually destroy the town. They asked that the state be made to reimburse them. But what if the coal company had been heartless? Did the state have no power to prevent its towns from falling down black holes?

    No. The court held in Keystone that “[I]t is well settled that the prohibition against impairing the obligation of contracts is not to be read literally.” The law was not held to be an impairment of contracts that ran afoul of the obligation of contracts provision, so the state did not have to reimburse the company.

    Another 1980s case, Energy Reserves Group, Inc. v. Kansas City Power & Light Co., sets forth a test to harmonize the obligations-of-contracts clause with a state’s legislative power. To prevail, the person seeking relief must first show that there has been a substantial impairment of a contractual relationship. If the law constitutes a substantial impairment, then the state may justify the law by showing that the impairment serves a significant and legitimate public purpose. If such a purpose exists, then a court should analyze whether the legislation is reasonably and appropriately related to the purpose. If the court gets to the last test, they are going to be very deferential. If a reasonable person could think that the law affects the public purpose, they won’t second guess the law. So if the law isn’t goofy, the court will uphold it.

    But, as in the case that began this post, the courts are going to be extra strict if a state seeks to get out of its own obligations.

  • Beware of Misusing State Resources During the Campaign Season

    by Julie Pelegrin

    Unless you’re living under a rock on another planet, you’re well aware that this year is a big campaign year. Throughout the summer and next fall, people will be campaigning and voting on several candidates and ballot questions. Before the session ends, let’s review the restrictions on using state resources for political campaigns.

    Use of State Resources
    Let’s be clear: It is improper and unethical for a legislator or an employee of the General Assembly to use state equipment and state services such as offices, telephones, internet access accounts, copiers, fax machines, computers, postage, supplies, and staff time for campaign purposes. Using state equipment or services for these purposes potentially leads to both civil and criminal liability. This means state telephones, computers, copiers, etc., which are to be used primarily for business purposes at all times, should never be used for political purposes or activity. Questions about material being copied should be referred to the Chief Clerk of the House or the Secretary of the Senate, whichever is appropriate.

    Political Activity v. Legislative Activity
    In determining whether a legislator or staff can use state resources during legislative time for an activity, it’s important to distinguish between “political activity” and “legislative activity.”

    Political activity means any form of campaigning or electioneering, including:

    • Attending or arranging for political meetings;
    • Transporting candidates or other persons who are engaged in campaigning or electioneering;
    • Distributing campaign material, whether it’s literature, political guide cards, placards or signs;
    • Soliciting or canvassing for campaign funds;
    • Developing or distributing opinion polls or surveys that are not related to legislative business; or
    • Any other form of political work.

    Legislative activity means activities that relate exclusively to the legislator’s official duties:

    • Introducing, debating, taking testimony, amending, and voting on legislation;
    • Discussing state issues that may be the subject of legislation; and
    • Other types of policymaking.

    Based on this distinction, a legislator and a legislative employee cannot engage in political activities within the State Capitol or on legislative time. Nonpartisan legislative staff do not engage in political activity, other than voting, at any time. The partisan staff employed by the House of Representatives and the Senate cannot engage in political activities while in the State Capitol or during regular work hours.

    Additionally, a legislator may use legislative staff and state resources during regular business hours within the Capitol building to arrange town hall meetings, so long as the meetings relate exclusively to the legislator’s official duties and legislative activities and the legislator and staff do not engage in election campaign activity relating to the election of a candidate or the support or defeat of a ballot measure at the meeting. It is important to ensure that a town hall meeting avoids even the appearance of being a campaign event; handing out campaign or other election materials at a town hall meeting is probably not a good idea.

    Maintaining a Website
    Another potentially grey area arises when a legislator uses legislative staff to help maintain the legislator’s website. If the legislator’s website predominantly consists of information relating to legislative activities, he or she may use legislative staff and state resources to maintain the website. However, the website may include some content that could be interpreted as being political or related to a campaign. If legislative staff is using state time and resources to maintain material on the website that is arguably political or campaign related, questions may arise with regard to these materials. In this case, the legislator should consider not using state resources to maintain the website.

    Political Contributions
    The General Assembly – including any persons employed by the General Assembly – cannot make a contribution in any form to a person’s campaign for public office. A contribution includes anything of value that is given to a candidate, directly or indirectly, to promote the candidate’s nomination, retention, recall, or election. This includes in-kind contributions in the form of services. Also, the General Assembly and its staff cannot expend public money or make any contributions to urge voters to vote for or against a ballot measure. The intent of these restrictions is to ensure that the General Assembly and its employees do not use public resources to persuade voters during an election.

    Partisan employees of the House or the Senate can participate in candidates’ campaign activities or issue campaigns on their own time outside of the Capitol building. Under the Senate employee handbook, Senate employees who take time away from work for political and campaign-related activities cannot use annual, sick, or other personal leave and will not be paid by the Senate for time spent away from work engaging in these activities.

    Mailings
    A Senator cannot send out mailings at the state’s expense unless the item being mailed is in response to a constituent request or comment. Similarly, a Representative can send a mailing at the state’s expense only if it is generated in response to a request for information. Legislators must use their campaign funds for campaign mailings.

    Deciding what is legislative and what is political is not clear in many cases. For more information on how state resources should and should not be used, you may want to read the OLLS memo: Use of House and Senate legislative staff, equipment, and resources. Also, we encourage legislators to contact the OLLS with their specific questions concerning the appropriate use of legislative staff and state resources.

  • Waiving Statutes: When the Law May Not be the Law

    by Julie Pelegrin

    For the last 140 years, the General Assembly has been introducing, debating, amending, and passing legislation. The enacted laws may allow an official or a governing body, under certain circumstances, to waive a statutory time limit, penalty, or fee; and individuals can sometimes waive their statutory or constitutional rights. But, generally speaking, the statutes are the statutes and only the General Assembly can change them or make exceptions to them. Basic civics, right?

    Usually right. But there are two areas in which elected persons other than legislators can waive a statute.

    One is the Colorado Works Program, which provides assistance to needy families. Acting together, the Governor and the Department of Human Services, at the request of a county, can waive most of the statutory and regulatory requirements of the Colorado Works Program, so long as the waiver is designed to improve the county’s methods for helping people achieve self-sufficiency, meeting work participation rates and performance goals, or reducing dependency. But the Governor and the Department cannot waive statutes or rules that govern:

    • Statewide eligibility for assistance;
    • The amount of the basic cash assistance grant;
    • The county’s maintenance of effort requirement;
    • A federal law requirement; or
    • A participant’s right to appeal a county decision (though the statutes that set the appeal procedures may be waived).

    The other area is K-12 education. The State Board of Education can waive most of the education statutes and rules at the request of a school district, a charter school, or a district of innovation. The standards and procedures for the waivers vary depending on who is requesting the waiver.

    School District Waivers
    A school district board of education that seeks a waiver must first hold a public meeting to discuss the statutes it wants waived and pass a resolution stating its intent to apply for the waiver. The local board must consult with the school district accountability committee before the meeting. The local board may seek a waiver for the entire school district or only for certain schools of the district. Certain school districts must also get approval from a majority of the affected district or school accountability committee members, the affected licensed administrators, and the affected teachers before they can apply for a waiver.

    Next, the local board must submit its application to the State Board of Education. The application must explain how the school district will comply with the intent of the waived rules or statutes. If the State Board grants the waiver, the district must comply with this intent statement. In a public meeting, the State Board will grant the waiver request if it finds that waiving the statute or rule will enhance educational opportunity and quality within the school district and that the costs to the school district of complying with the statute or rule significantly limit educational opportunity within the school district. If granted, the waiver continues until the State Board revokes it in a public meeting, either at the local board’s request or because the State Board decides on its own that there is a good reason to revoke the waiver.

    Charter School Waivers
    A charter school can also ask the State Board to waive a statute or rule. There are certain statutes that the State Board has automatically waived for all charter schools. A charter school just needs to list in its charter application or contract the automatic waivers it will be using. If the charter school wants to request additional waivers, it must list those in the charter application or contract, along with its rationale for requesting the waiver and an explanation of how it will meet the intent of the waived statute or rule. Once the charter contract is finalized, the authorizing school district must submit the charter school’s waiver request to the State Board, which has 45 days to grant or deny the waiver. If it denies a waiver, the State Board must explain why it did so. The bases for granting or denying a waiver are not clear, but when deciding which statutes to automatically waive, the State Board must consider the overall impact and complexity of the statute and the potential consequences that waiving the statute may have on a charter school’s practices. A charter school waiver continues through the term of the charter contract, but the State Board periodically reviews it. The State Board may revoke the waiver if it decides the waiver is no longer necessary.

    District of Innovation Waivers
    The process for waiving statutes for a district of innovation is a hybrid of the school district and charter school procedures. First, a local board must approve an innovation plan submitted by one or more schools of the district or prepared by the school district itself. The innovation plan explains the innovations that the school wants to implement that will help it improve student performance and outcomes and lists any statutes or rules that need to be waived to implement the innovations. The plan must be supported by a majority of the affected administrators, teachers, and school accountability board members.

    If the local school board approves an innovation plan for a school or a group of schools, it submits the plan to the State Board and requests designation as a district of innovation. If the State Board grants the designation, it waives the statutes and rules listed in the innovation plan. The State Board must grant the designation unless it thinks the plan would actually decrease the level of academic achievement in the affected schools or the plan is not fiscally feasible. The waivers continue so long as the designation continues. There is no schedule by which the State Board reviews the designation, but the district of innovation reviews the performance of the affected schools every three years.

    Statutes that Cannot be Waived
    Certain statutes cannot be waived for anyone; some statutes can be waived for some, but not others. For example:

    • The State Board cannot waive the school finance statutes or the data reporting requirements for school performance reports for a school district, a charter school, or a district of innovation.
    • The State Board cannot waive the special education statutes or the requirements for fingerprinting and background checks of employees for a school district or a district of innovation – but it can waive them for a charter school.
    • The State board cannot waive the statutes concerning state assessments for a school district or a charter school – but it can waive them for a district of innovation.
    • The State Board cannot waive the accreditation and school performance statutes, the tobacco-free schools requirements, and the requirement to adopt a conduct and discipline code for a school district – but it can waive them for a charter school or a district of innovation.

  • To Testify or Not to Testify: Responding to a Subpoena

    by Sharon Eubanks

    Citizens often turn to the courts to challenge the acts of the General Assembly and its members, which can lead to legislators being served with subpoenas commanding them to appear at a deposition, trial, or administrative proceeding to give testimony. Because responding to a subpoena can be time consuming and inconvenient and can implicate the interests of the General Assembly as a whole, legislators should be familiar with the range of options that are available if they are served with a subpoena.

    Does the subpoena seek testimony regarding the legislator’s legislative duties?
    When a legislator is served with a subpoena, he or she must generally appear at the time and place specified in the subpoena to give testimony unless the doctrine of legislative immunity provides an evidentiary privilege against testifying. Legislative immunity provides this evidentiary privilege only with respect to activities that fall within the sphere of legitimate legislative activity, such as:

    • Taking actions during committee meetings and floor sessions;
    • Taking actions during the course of committee investigations;
    • Participating in impeachment proceedings; and
    • Enacting and enforcing legislative rules.

    In contrast, courts have found the following actions to be outside the sphere of legitimate legislative activity:

    • Meeting with or influencing executive branch or local government employees or officials; and
    • Engaging in committee activities that are outside the scope of the committee’s powers.

    For further discussion of the doctrine of legislative immunity and activities that fall within the sphere of legislative activity, see this LegiSource article.

    The Office of Legislative Legal Services (OLLS) can help a legislator determine whether a particular activity is likely to fall within the sphere of legitimate legislative activity. If the subpoena is seeking testimony regarding an activity that does not fall within the legislative sphere, the subpoena probably applies to the legislator as a private citizen and the legislator may be compelled to testify. In this case, the legislator should consider retaining private counsel if he or she wants to try to avoid testifying; the OLLS will not be able to provide further legal assistance.

    Options when the subpoena seeks testimony with respect to legislative activities.
    If a legislator is subpoenaed to testify regarding activities that fall within the sphere of legitimate legislative activity, the legislator has the option of deciding whether to testify and, if a legislator decides not to testify, the legislator may ask the Committee on Legal Services to retain legal representation to assist with the matter.

    If the legislator does not wish to testify, the appropriate legal action is to file a motion to quash the subpoena. Alternatively, the OLLS has found that many private attorneys are unfamiliar with the doctrine of legislative immunity and will voluntarily withdraw a subpoena once informed of the doctrine.

    Legislative immunity does not prohibit a legislator from testifying voluntarily, and the legislator must ultimately make the decision about whether to testify. However, before deciding to testify and while testifying, a legislator should consider the following issues:

    • Testifying can be time consuming and can interfere with the legislator’s legislative duties;
    • The best evidence of legislative intent or of what was said during a debate is the recording or transcript of the debate itself, and a legislator’s subsequent testimony as to legislative intent will likely be inadmissable; and
    • The legislator should clearly state while testifying that he or she is testifying solely as an individual and that he or she is not representing the views of the General Assembly as a whole.

    In sum, a legislator who is served with a subpoena can often avoid testifying and, before deciding to testify, should give serious consideration to the potential consequences of testifying and the possibility that his or her testimony may be given little weight or even ruled inadmissible. After being handed a subpoena, the first call that a legislator makes should be to the OLLS so the Office may help the legislator work through these issues.

  • Senate – and House – To Weigh In on Appointment of a New Lt. Gov

    by Sharon Eubanks and Julie Pelegrin

    Every year, the Senate spends significant time confirming the Governor’s appointments to boards, commissions, and executive branch offices – a task that doesn’t clutter the calendar for the House of Representatives. This week, Governor Hickenlooper appointed Donna Lynne to fill the vacancy in the office of lieutenant governor that will arise when Lieutenant Governor Joe Garcia’s resignation takes effect later this month. Confirmation of this appointment doesn’t follow the ordinary course of business. By operation of the state constitution, Ms. Lynne must be confirmed by both the Senate and the House of Representatives.

    Power to Appoint Balanced by Power to Confirm
    Section 6 (1) of article IV of the Colorado constitution authorizes the Governor to nominate and “by and with the consent of the Senate” appoint all officers whose offices are established by the constitution or created by law and whose appointment or election is not provided for in another constitutional provision or statute. The Senate’s responsibility to review the Governor’s appointments is an excellent example of the separation of powers within the constitution. The Governor appoints the executive branch officers to administer the operations of state government, but those persons cannot officially take office until the legislative branch approves the appointments, although, if they are appointed during the interim, they can serve until confirmed – or not – during the legislative session. The legislative power to confirm checks the executive power to nominate and appoint.

    Appointment of State Officers and Vacancies in Certain Constitutional Offices
    The phrase used in section 6 (1) of article IV, “all officers whose offices are established by this constitution, or which may be created by law,” is interpreted as the power to appoint officers other than the elected statewide officials listed in section 1 of article IV. Using this power, the Governor regularly appoints individuals to hundreds of state offices, including heads of departments, other departmental officers, and members of the myriad boards and commissions in the executive branch – all of whom must be confirmed by the Senate.

    Section 6 (2) of article IV specifically authorizes the Governor to fill any vacancy that may occur in the office of state treasurer, secretary of state, or attorney general. The Governor has exercised this power only on rare occasions. Since 1974, a Governor’s appointment to one of these constitutionally created state offices is also “by and with the consent of the Senate.”

    To illustrate the number of gubernatorial appointments that the Senate must consider during a typical legislative session, according to records kept by the Secretary of the Senate, the Governor submitted 221 appointments during the 2013 session; 177 appointments during the 2014 session; 179 appointments during the 2015 session; and 205 appointments so far this session.

    Senate Rules for Confirmations.
    Senate Rule 36 sets forth the process the Senate uses for considering governor appointments. First, the Senate receives the appointment from the Governor and it is read in open session. At that point, the Senate President refers the appointment to at least one committee of reference. The committee schedules its consideration of the confirmation on the Senate calendar to allow the public to comment and submit information to the committee concerning the appointment. The committee then considers the appointment in an open meeting on the calendared date, but it doesn’t conduct a public hearing on the appointment unless a majority of the committee members present vote to do so.

    The question often arises whether a committee of reference can “kill” or “postpone indefinitely” a governor’s appointment. Based on legislative custom and practice, a committee cannot “kill” a governor’s appointment. A committee can only recommend to the Senate that it should or should not confirm a governor’s appointment. Only the Senate as a body can, by vote, confirm or not confirm a Governor’s appointment.

    In its report to the Senate, a committee of reference may recommend the Senate conduct an executive or “closed” session to consider a governor’s appointment. But the Senate will consider the appointment in open session unless a majority of the Senators vote to consider the appointment in executive session. And even if they discuss the appointment in an executive session, section 6 (3) of article IV of the state constitution requires the Senate to act on the appointment in open session and by a recorded roll call vote.

    A committee may also recommend in its report that the appointment be placed on the consent calendar, subject to the decision of the Senate Majority Leader that the appointment is noncontroversial. Once the Senate receives a committee’s report, the appointment is placed on the regular or consent calendar for the 2nd day of actual session following receipt.

    Vacancy Appointments for the Office of Lt. Governor
    But it may be that none of this will apply to the appointment of the lieutenant governor. When a vacancy occurs in the office of the lieutenant governor, the constitution requires a confirmation process that includes the House. In 1974, the voters amended section 13 of article IV of the state constitution to say that, when there is a vacancy in the office of the lieutenant governor, the Governor will nominate a person who will take office “upon confirmation by a majority vote of both houses of the general assembly.” Since 1974, this confirmation process has been followed only once. Lieutenant Governor Mike Callihan resigned on May 10, 1994, the second-to-last day of the 1994 legislative session. The resignation took effect at noon that day. Shortly after the resignation took effect, to avoid having to call a special legislative session, Governor Roy Romer notified both the Senate and the House of Representatives that he had nominated Senator Sam Cassidy to fill the vacancy in the office of the lieutenant governor. The General Assembly then adopted a joint resolution that set out the procedures the Senate and the House would follow in considering the confirmation of that nomination. With this resolution, the House and the Senate agreed to the process routinely used by the Senate to confirm the Governor’s appointments. The resolution also provided that the House would consider the appointment first, and the Senate’s consideration would follow if the House confirmed the appointment. On May 11, 1994, a majority of the members of both the House and the Senate confirmed Senator Cassidy’s appointment as lieutenant governor.

    Since the Governor’s appointment of Ms. Lynne just occurred earlier this week, the General Assembly has not yet taken any actions to establish the process by which it will consider this appointment.