Colorado LegiSource

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

Author: olls

  • 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.

  • Do-overs in the Legislative Process

    by Julie Pelegrin

    A recent LegiSource article explained the rules for reconsideration that allow a committee of reference or the House or the Senate to reconsider the vote taken on a motion. But there are other routes a legislator may take to get a committee or the House or the Senate to take a second look at a bill or amendment.

    Amendments to the Committee of the Whole Report
    The most commonly used process for changing an action is an amendment to the committee of the whole report. Of course, this process only applies to actions taken on second reading in the House or the Senate.

    The second reading of bills is a two-step process. First, the House or the Senate passes a motion to sit as the committee of the whole. Considering bills as a committee that includes all of the Representatives or Senators allows the legislators to act under different rules than would apply if they were taking action formally as the House or the Senate. For example, while acting as the committee of the whole, debate cannot be limited, motions cannot be reconsidered, a decision of the chair of the committee of the whole cannot be challenged, and votes are not recorded.

    The committee of the whole adopts or rejects committee of reference reports and floor amendments to bills, generally debates the bills, and finally adopts, rejects, or refers each bill on a voice or standing vote. Once the committee of the whole has considered all of the bills on the calendar, or as many as it has time for, the majority leader moves that the committee of the whole “rise and report.”

    At this point, the House goes back to doing business as the House and the Senate goes back to doing business as the Senate, because they cannot complete the second reading process without a formal, recorded vote on the bills. This vote occurs when the House or the Senate votes on the committee of the whole report, which includes all of the amendments the committee adopted and all of the bills the committee considered. And, like any other committee report, the report of the committee of the whole can be amended.

    A legislator may offer an amendment to the committee of the whole report to change any action that the committee took – for example, to say that an amendment or bill that the committee passed, did not pass; or an amendment or bill that the committee rejected, did pass. All votes on amendments to the committee of the whole report are recorded. Once it has considered all amendments to the report, the House or the Senate finishes second reading by adopting or rejecting the entire committee of the whole report, as amended if any amendments passed.

    Under Senate Rule 25(f), a Senator can offer an amendment to the committee of the whole report to show that an amendment that was not offered in the committee of the whole did pass. Under the House rules, the committee must have actually considered an amendment for it to be the subject of an amendment to the committee of the whole report.

    Why would the House or the Senate adopt an amendment to the committee of the whole report to change something it just did? Since the votes taken in the committee of the whole are not recorded, a legislator may want an official count of the number of legislators voting for or against an amendment or a bill. Also, in the committee of the whole an amendment or bill passes with the approval of a majority of those present and voting. An amendment to the committee of the whole report and final adoption of the report requires the approval of a majority of those elected to the body: 33 in the House and 18 in the Senate.

    Referring bills from 2nd reading back to a committee of reference
    Sometimes, while debating a bill in the committee of the whole, a member will argue that a particular amendment under debate is so technical or substantive that it requires consideration by a committee of reference whose members have special expertise in the subject area. Or the committee of the whole may adopt an amendment that changes the fiscal impact of the bill. In this case, a legislator may move to refer the bill back to a committee of reference – usually the committee that originally considered the bill or the appropriations committee.

    Usually, a bill will be referred back to a committee before it is amended by the committee of the whole, but sometimes the committee of the whole will have already adopted the committee of reference report or other amendments. It is up to the legislators to decide whether the bill is referred back to the committee of reference unamended or as amended by the committee of the whole. In either case, the committee of reference may adopt a second committee of reference report that further amends the bill or changes the amendments adopted by the first committee of reference.

    Referring bills from 3rd reading back to 2nd reading or to a committee of reference in the House
    Under House rules, if a member tries to offer a substantive amendment to a bill on third reading, the proper motion is to refer the bill back to second reading for consideration of the substantive amendment. When the committee of the whole considers the bill this time, it will be considering the bill as introduced in the House with any amendments adopted on second reading enrolled into the bill – the engrossed version if it’s a House bill or the revised version if it’s a Senate bill. If the committee of the whole amends the bill on the second consideration, there will be a second engrossed or revised version of the bill.

    At the third reading stage, the House or Senate may also vote to refer the bill back to a committee of reference. In this case, the committee of reference will consider the engrossed or revised version and any amendments that the committee of reference adopts will be to the engrossed or revised version. The committee of reference may then move the bill to the committee of the whole for consideration on second reading – again. But the committee of reference cannot move the bill directly to third reading because Senate Rule 22 (f) and House Rule 25 (j) (3) only allow a committee of reference to refer a bill to another committee of reference or to the committee of the whole or to postpone the bill indefinitely.

  • 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.

  • U.S. Supreme Court Requires Resentencing for Juveniles Serving Life Without Parole

    by Michael Dohr

    Because of a recent U.S. Supreme Court decision, 48 inmates serving life sentences without the possibility of parole in the Colorado Department of Corrections are now eligible for resentencing hearings. But their new right to a resentencing hearing doesn’t guarantee them a different sentence.

    From 1990 to 2006, Colorado imposed a mandatory life sentence without parole on a juvenile convicted of a class 1 felony. In 2012, in the case of Miller v. Alabama, the U.S. Supreme Court ruled that a mandatory sentence of life without parole for a juvenile is unconstitutional because it violates the 8th Amendment prohibition against cruel and unusual punishment.

    supreme courtSince Colorado’s mandatory life sentence without parole for a juvenile was held unconstitutional, you may assume that all of those persons serving that sentence would be entitled to resentencing. But when the U.S. Supreme Court announces a criminal case, it does not automatically mean that each person in the same circumstances as the defendant in the Supreme Court case gets the benefit of the decision. In fact, usually only those defendants whose cases are still on direct appeal from their conviction get the benefit of the decision.

    In the criminal justice system, there are two types of appeals: Direct appeals and collateral or post-conviction appeals. A direct appeal occurs when the defendant appeals his or her conviction directly to the next highest court, challenging the grounds of the conviction based on an alleged error that occurred before or during the trial. The process of direct appeal is completed once the Colorado Supreme Court – or the U.S. Supreme court if there’s a federal issue involved – rules on, or refuses to consider, the appeal. After a defendant’s direct appeals are completed, the defendant’s conviction is final.

    After the conviction is final, a defendant may file a collateral appeal claiming there is a fundamental issue, such as ineffective assistance of counsel, that was not addressed on direct review. The defendant may also bring a collateral appeal claiming there is newly discovered evidence of the defendant’s innocence that the court should consider.

    This distinction between direct appeals and collateral appeals is significant in this case because there are 48 inmates in the Colorado Department of Corrections who are serving mandatory life sentences without the possibility of parole and whose direct appeals are completed.

    The legal issue that determines whether a defendant whose direct appeal is completed receives the benefit of the Supreme Court’s decision is whether the issue decided in the case is a substantive issue of criminal law or a procedural issue of criminal law. If the issue is substantive, then a defendant who has completed the direct appeal process also gets the benefit of the decision in the case. But if the issue is procedural, it only applies to those defendants whose cases are still on direct appeal. The vast majority of the cases involve procedural issues of criminal law and therefore do not apply to defendants whose direct appeals are completed.

    In June of 2015, the Colorado Supreme Court held in People v. Tate that the Miller decision involved a procedural issue, not a substantive one, and, as such, does not apply to a defendant who has completed his or her direct appeal. Colorado’s decision was in the minority of state courts that considered the question. But, it was not the final word on the issue for Colorado defendants because the U.S. Supreme heard a case this term to address the Miller question.

    gavel 5-8In January 2016, the U.S. Supreme Court held in Montgomery v. Louisiana that Miller is substantive. The Court found that Miller involved a substantive criminal issue because the decision addressed criminal sentencing. Specifically, the Court found that the Miller decision prohibited a certain category of punishment for a class of defendants because of their status. The prohibited category of punishment is a mandatory life sentence without the possibility of parole, and it is prohibited because of the defendants’ status as juveniles.

    So, the 48 inmates in Colorado whose direct appeals are finished are now eligible for resentencing hearings. The Supreme Court acknowledged that it may be a burden on state courts to hold hearings for all of the inmates who are now eligible for resentencing under the Miller decision. The Court suggested that states could choose to parole the inmates rather than hold resentencing hearings.

    But it’s important to note that a resentencing hearing for one of these defendants doesn’t automatically result in a different sentence. The operative term in the Miller holding is “mandatory;” mandatory sentences to life without the possibility of parole are unconstitutional for juveniles. At a resentencing hearing, a court could review the evidence and arguments presented at the trial and conclude that the defendant deserves a sentence to life without the possibility of parole. In this situation, the court may affirm the defendant’s original sentence. So, while the Montgomery decision grants the defendants the right to a hearing on their sentences, it does not guarantee them a change in their sentences.

  • The Four Ws and One H of Reconsideration of a Previous Vote

    by Sharon Eubanks

    The definition of “reconsider” pretty much sums up what reconsideration is all about – “to consider again, especially with a view to change a decision or action.” In the legislative arena, “reconsideration” is the mechanism in the rules that enables a committee of reference or the House or the Senate to consider changing an action it has already taken.

    A legislative body has a right to reconsider a vote on an action previously taken by the body, subject to certain limits. When a body reconsiders its vote, that original vote is canceled completely, as though it had never been taken, and the body immediately votes again upon the question reconsidered.

    Closely related to reconsideration is giving notice of intent to reconsider, which provides notice of a member’s intent to reconsider, at some point in the future, a prior vote on an action. The effect of giving notice of intent to reconsider is to suspend all action on the subject of the motion until either the reconsideration is acted on or the time to act on the reconsideration has expired. However, giving notice of intent to reconsider does not necessarily mean that reconsideration will actually occur.

    Senate Rule 18 and House Rule 35 govern reconsideration and notice of intent to reconsider in Colorado legislative proceedings on the floor and in committees of reference.

    What can be reconsidered? Any action that the House or Senate takes when conducting business as a body and any action that a House or Senate committee of reference takes may be reconsidered by the acting body. But reconsideration is not allowed for an action that the House takes while sitting as the Committee of the Whole (COW).

    The Senate does not have a similar rule expressly prohibiting reconsideration of an action of the COW, but there are some practical problems in applying the reconsideration rules when the Senate is sitting as the COW. For example, how would the chair determine if the person moving for reconsideration voted on the “prevailing side” (see explanation of who can request reconsideration, below) when votes in the COW are taken viva voce? However, at least once recently, a Senator made a motion to reconsider an action of the COW and the motion was considered without objection. Nonetheless, generally it has been Senate’s practice to not permit reconsideration during the COW.

    Who can request reconsideration? In both the House and the Senate, only a member who voted on the prevailing side of an action, whether taken on the floor or in committee, may make a motion to reconsider that action. Sometimes a member will switch his or her vote at the last moment to the prevailing side to preserve the option of subsequently moving to reconsider the action.

    Only a House member who has voted on the prevailing side of an action of the House may give notice of intent to reconsider that action. And, while only a Senator who voted on the prevailing side may give notice of intent to reconsider a committee action, any Senator, regardless of how he or she voted, may give notice of intent to reconsider an action of the Senate.

    How does reconsideration occur? Reconsideration occurs after a member makes a motion to reconsider a House or Senate floor or committee action and the motion is approved. In the Senate, a majority of the members elected to the Senate or a majority of the members of a committee of reference, whichever body took the action at issue, must approve the motion to reconsider. In the House, two-thirds of the members elected to the House or two-thirds of the members of a House committee, as applicable, must approve a motion to reconsider unless a member makes the motion during the last two days of session. In that situation, only a majority of members must approve a motion to reconsider.

    To prevent the abuse of motions to reconsider, if a motion to reconsider is lost or, upon reconsideration, the original action is affirmed, the same Senate action cannot be reconsidered a second time unless the motion is approved by unanimous consent of the Senate or a Senate committee, as appropriate. If a motion to reconsider is defeated or the original action is affirmed by the House or a House committee, no further motion to reconsider the same action is allowed.

    Senate members of committees of reference may give notice of intent to reconsider. In this case, the measure affected by the notice must be held until the next regularly scheduled committee meeting. But giving notice to reconsider is out of order if holding the measure will cause it to miss a deadline for passage out of committee and the deadline isn’t extended. In contrast, members of House committees of reference cannot give notice of intent to reconsider a committee action.

    When can reconsideration occur? A member must make a motion to reconsider an action of a House or Senate committee either at the meeting at which the action is taken or at the next meeting of the committee.

    A Senator must make a motion to reconsider, or give notice of intent to reconsider, an action of the Senate on the same day that the action is taken or on either of the next two days of actual session. A Representative must make a motion to reconsider, or give notice of intent to reconsider, an action of the House before adjournment of the legislative day on which the action is taken. If notice is timely given, the House member then has until noon on the next day of actual session to make a motion to reconsider the action.

    But, it’s important to remember that a body can reconsider an action only if the measure on which the action was taken is still before the body and the action is still capable of being changed. So, a committee member can’t make a motion to reconsider a committee action on a measure if the committee report has already been signed by the chair and delivered to the House or Senate front desk. And a member can’t move to reconsider a third reading vote if the measure has already been introduced in the second house or delivered to and acted upon by the Governor.

    A Senator’s motion to reconsider the action taken on a measure already transmitted to the House, but not yet introduced, must be accompanied by a motion asking the House to return the measure to the Senate. If a House member makes a motion to reconsider, the chief clerk of the House is directed to request the return of the relevant measure if it has already been transmitted to the Senate or the Governor. But if the measure’s been introduced in the Senate or acted upon by the Governor, the measure can’t be returned to the House.

    Why would someone request reconsideration? In many situations, a motion to reconsider is used when a member, for whatever reason, doesn’t vote the way he or she intended to vote or a member is absent during the recorded vote on a measure. With reconsideration, the original vote is wiped away and replaced with the second vote. When controversial issues and close votes are involved, a motion to immediately reconsider a vote can be used to lock in that vote since unanimous consent is required for a subsequent motion to reconsider after the first motion to reconsider is lost or, upon reconsideration, the original action is affirmed. On the flip side, giving notice of intent to reconsider a vote can be used as a delay tactic to slow a measure’s progress through the legislative process or to allow time to try to convince enough members to change their votes and thereby change the action taken. Once notice is given, all action on a measure is suspended and the Secretary of the Senate or the Chief Clerk of the House, as applicable, holds the measure until the time for reconsideration has expired. In the Senate, giving notice of intent to reconsider can be used to delay a floor action up to three days and a committee action until the conclusion of the next regularly scheduled committee meeting. Giving notice of intent to reconsider can delay an action taken by the House until noon on the next day of actual session after the action is taken.

    For more information on reconsideration, check out our post from September 29, 2011, which discusses actual legislative situations that involved reconsideration.

  • Eliminating Expletives

    by Kurt Woock

    Expletives have nothing to do with four-letter words.1 But, once you know what they are, you might utter a four-letter word when you see an expletive in print. Learning to recognize and avoid them will increase the clarity of your writing.

    Expletives are often placed at the beginning of sentences and, based on that position, sound as if they have something to do with the subject. They don’t. The combination of words to watch out for is “there” or “it” followed by some variation of the verb “to be” (is, are, were, etc.). A few examples:

    There is a new restaurant in my town.
    It’s raining.
    It is going to be a busy day.
    There are 35 senate districts in Colorado.

    In each of the examples above, find the subject. Of course, that’s a trick question. There is no subject. (See what I did there?) The words “there” and “it” are expletives; linguistic imposters that look like subjects and smell like subjects but, in fact, are just shadows of the real thing. They are empty shells, devoid of all meaning and offering nothing to the sentence. Try to diagram the sentences, if you’d like. Or, try to explain what the “there” refers to or what function “it” serves. If you try, you’ll just spin in circles. Now, look at modified versions of the sentences above. In each example, the expletive was replaced with a real subject.

    My town added a new restaurant.
    The rain just started.
    Today is going to be busy.
    Colorado has 35 senate districts.

    These sentences offer more to the reader. The meaning is more direct. So why do expletives exist at all?

    Expletives are shortcuts. They can help a speaker deliver information quickly. If the context surrounding the expletive is rich enough to inform the listener adequately, it’s hard to even spot them when they occur. Especially when the recipient of the message is a listening audience, expletives can smooth out awkward constructions: “There’s no place like home!” is much more appealing than “Home is a place unlike any other!”

    But writing is a more deliberate form of communication. We take the time to write and edit and rewrite until we arrive at the best way of saying something. The situations in which using an expletive is the best way to communicate something in writing are much rarer than in speech. The truth is, using an expletive won’t send your sentence or paragraph tumbling down into an unrecognizable heap. Instead of seeing them as an outright problem, look for expletives as an indication that you can make that sentence stronger.

    Searching the statutes, you’ll find thousands of expletives. Some are more avoidable than others. “There is hereby created…” probably isn’t going anywhere soon. But many could be easily reworded for the better. The following passages from the C.R.S. contain expletives (including examples with expletives in the middle of a sentence) followed by a simple rewrite that makes the passage more direct.

    BEFORE: If the commissioner finds that there are sufficient assets of the insurer located in this state to justify the appointment of an ancillary receiver…
    AFTER: If the commissioner finds that the insurer has sufficient assets located in this state to justify the appointment of an ancillary receiver…
    BEFORE: There are people in Colorado communities who are experiencing mental health or substance abuse crises…
    AFTER: People throughout Colorado communities are experiencing mental health or substance abuse crises…

    The changes are simple and don’t threaten the sentence’s meaning. A sentence that begins with a subject instead of an expletive gives the reader a firmer toehold for the rest of the sentence. An internal expletive that is subbed out for something clearer prevents readers from stumbling and missing the point you’re trying to make.

    The effect a single change might have in an isolated sentence might seem marginal, but, when clear language is used consistently, a reader’s ability to read a text quickly and accurately becomes much easier.

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    1. Four-letter words aren’t expletives at all, actually. Depending on the word, it would be either an obscenity (if it deals with a bodily part or function) or a profanity (if it deals with a diety). But that’s a different story altogether.