Colorado LegiSource

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

Author: olls

  • “Why Don’t We Fix the Radiator?”: How a Broken Appliance Led to a Dazzling Restoration at the Colorado Capitol

    by Darren Thornberry

    When the chambers of the Colorado Senate and House of Representatives were built in 1894, they were adorned with gold filigree stenciling over red and green paint, respectively, that was the work of Denver artist Manuel Hill. It’s hard to imagine now, but Hill’s beautiful work fell out of favor over the decades, and in 1954 the walls and ceilings of both chambers were covered in acoustic tiles in a décor scandal we now refer to as TileGate.

    The tiles were removed in 2013 and tested for lead and asbestos as part of a multiyear project to restore both chambers to their “historic and regal condition,” as former House Speaker Frank McNulty told The Denver Post.

    It was Speaker McNulty who unintentionally spearheaded the renovations. See, he wanted a tilted radiator in the House gallery fixed. And then, as it turned out, a peek behind the tiles wouldn’t hurt anything, either. After all, black and white photos of the stenciling had tantalized state architects, though no one knew what condition it was in. As the project commenced in 2013, and workers began peeling back the tiles, they were astonished by what they saw.

    Senate Renovation Tile PhotoA photo of the original stenciling underneath the acoustic tiles in the Senate Chambers. Photo shared by Chief Clerk Marilyn Eddins.

    Thus began a huge renovation, funded by the Senate and House budgets and also the state’s capitol construction fund, which included painstakingly recreating the ornate stenciling and restoring the chandeliers in both chambers. Speaker McNulty would ultimately pass the project baton to his successor as House Speaker, Mark Ferrandino.

    On January 6th, more than a half century after it disappeared, the artistry hidden under those infamous acoustic tiles on the ceiling of the House of Representatives was again on display. That day, House Speaker Dickey Lee Hullinghorst officially declared the chamber open, and capitol staffers were invited to see not just the stenciled ceiling but also the restored chandelier in all its glory.

    Many of us walked the planks and braved the ceiling coffer (officially the “lay light space”) in the weeks prior to the reveal, both in the House and the Senate. Who recalls wondering if the scaffolding would really keep you from falling into the Well? (This writer does.) Both the coffer’s flat glass surface and the skylight in the roof above date to the 1890s.

    House of Representatives Ceiling Coffer Photo. Photo Credit: Ashley Zimmerman

    A view of the ceiling coffer in the House of Representatives Chamber prior to the reveal. Photo credit: Ashley Zimmerman

    St. Louis Antique Lighting restored the immense House chandelier to its turn-of-the-20th-century glow. They recreated the top tiers and the top escutcheon plate based on photos and the original chandelier that is still in place in the Supreme Court Chambers. The Senate chandelier is due to be restored during the interim this year.

    Here is an incredible time-lapse film of the House of Representatives restoration process, courtesy of Rocket House Pictures, LLC.

    Replica “Edison” bulbs were installed at the perimeter and ceiling of the House in favor of the originals. Replacing the old cloth-wrapped wiring in the originals, to light them up once again, was simply one project too many.

    During the ceiling restoration process, it was discovered that prior to the most recent stencil pattern found, there was an earlier set of stencils and paintings. In the House, there were shields, eagles, and Greek or Roman profiles. In the Senate, similar profiles were found, as well as what appears to be a portrait of President Lincoln on the back east wall and another portrait on the back west wall. The west side portrait could not be identified due to the glue dobs (to hold the tiles in place) that had been placed over the face on the eyes.

    The Denver Art Museum brought in equipment used to look under paintings to help document the earlier stencils/paintings. State architect Lance Shepherd states that he believes the early stencils/paintings were installed just before legislators moved into the chambers and were meant to be temporary. Likely soon afterward, the stencils now seen in both chambers, and for which there is photographic documentation, were created.

    The recreated stenciling on the ceiling is based on photographs of the original design. A water-based paint was used all those years ago, probably to save money, and most of the ceiling stenciling had been washed away prior to the installation of the acoustic tiles.

    Our House of Representatives and Senate chambers surely are among the most beautiful working legislative spaces in the country, thanks to their restorers’ hard work and attention to detail. May we all work as diligently this session as they did during the interim!

    Author’s Note: Thanks to Lance Shepherd, manager of design and construction programs for the DPA’s Office of the State Architect, for his invaluable contributions to this article.

  • Statutory Construction: Severing Statutes and Resolving Conflicts

    by Julie Pelegrin

    Editor’s Note: This week’s article is the seventh in our series on statutory construction. For previous installments, click on “statutory interpretation” in the tag cloud.

    In addition to presumptions and tools for discerning legislative intent, the statutes on construction of statutes provide specific guidance for when a court can salvage part of an otherwise unconstitutional statute and how a court should decide which statute to apply when two statutes conflict.

    Statutory Salvage Operations: Severability

    Suppose a court interprets a statute and finds that part of that statute is unconstitutional. Does that mean the entire statute is unconstitutional, or can some portions of the statute survive?
    The answer turns on the concept of severability. Section 2-4-204, C.R.S., says that, if a court finds part of a statute to be unconstitutional, the remaining constitutional parts of the statute are valid, unless the court finds that those remaining parts are:

    • So essential to the unconstitutional part, that the General Assembly would not have passed the constitutional part without the unconstitutional part; or
    • So incomplete that they cannot be implemented without the unconstitutional portion.

    To illustrate, let’s consider a hypothetical situation: Assume there’s a statute that regulates caterpillar breeders. Under this statute, a caterpillar breeder cannot have more than 1,000 caterpillars at a time and the caterpillar breeder cannot advertise her caterpillar breeding business. A caterpillar breeder sues the state claiming that the statute is unconstitutional because limiting the number of caterpillars and prohibiting advertising restricts her freedom of commercial speech. The court agrees that the prohibition on advertising is unconstitutional and cannot be enforced. However, the court finds that the limit on the number of caterpillars has nothing to do with commercial speech and is constitutional. The court will find that the statute is severable because the limit on the number of caterpillars is not directly related to the prohibition on advertising and can be implemented even though the prohibition on advertising is not enforced.

    When Statutes Collide Part I: Specific Controls Over the General…Usually

    Sometimes a statute will state a general requirement that is intended to apply in a variety of situations. But another statute may impose a different requirement in a specific situation. How is a court supposed to apply both of these statutes?

    Section 2-4-205, C.R.S., directs a court to read the statutes together and give effect to both of them if possible. If the two requirements conflict and they cannot both apply, the court must apply the specific requirement instead of the general requirement. But, if the General Assembly passed the general requirement after it passed the specific requirement and made it clear that the general requirement was intended to replace the specific one, then the court will apply the general requirement, not the specific requirement.

    AnotCaterpillar Cliparther illustrative hypothetical: Assume there’s a statute that says applications for a professional license must be filed in triplicate with the appropriate licensing agency. But, the statute for licensing professional caterpillar breeders says a caterpillar breeder may submit a single copy of the license application with the professional caterpillar breeders board. Obviously, a court could not apply both of these statutes; one must prevail. The court would allow the caterpillar breeder to file a single copy of the license application with the board, unless the statute that requires the application in triplicate was passed after the caterpillar breeders’ statute, and the bill for the general licensing statute included a statement of legislative intent that it is imperative to good government that all licensing applications be filed in triplicate.

    When Statutes Collide Part II: Later In Time Controls

    Sometimes two statutes conflict, not because one is general and the other is specific, but because one prohibits what the other allows or requires. As in other cases, the court will first try to reconcile the differences and give effect to both sections. But, under section 2-4-206, C.R.S., if the differences are irreconcilable – there is a true conflict – the statute that has the latest effective date is the one the court will apply. If both statutes were passed in the same legislative session with the same effective date, the statute that has the latest date of passage will apply.

    Again, to illustrate: A caterpillar breeder loses his license because he does not post his license in the front window of the breeding building, as required by House Bill 1705. But, the caterpillar breeder argues to the court that he should keep his license because, under Senate Bill 923, a person who posts anything in the window of an insect breeding facility commits the crime of insect cruelty (papers in the window block the sunlight). The court cannot reconcile the conflict between the two statutes, so it looks to the effective dates of the bills. House Bill 1705 had an effective date clause that said it took effect July 1, 2009. Senate Bill 923 passed in 2009 without an effective date clause and without a safety clause – so it took effect August 5, 2009. Senate Bill 923 took effect last, so it controls. The caterpillar breeder does not have to post his license.

    If House Bill 1705 and Senate Bill 923 had both passed without a safety clause and without an effective date clause, they would have both taken effect on August 5, 2009. In that case, the court would look for the date on which the Governor signed each of the bills. If the Governor signed House Bill 1705 on May 3, 2009, and signed Senate Bill 923 on May 4, 2009, the court would apply Senate Bill 923.

  • Ensuring Decorum and Civility in the Legislative Committee Hearing Process

    by Dan Cartin

    If you attend a legislative committee meeting at the State Capitol, you will see this sign posted in the Senate and House committee room hallways:

    sign I

    Maintaining decorum and civility during the course of legislative committee meetings is the cornerstone of a productive hearing on the bills before that committee. Persons who come to testify on legislation and those who attend a committee hearing to peacefully observe and listen to the proceedings often travel long distances to the Capitol on the day of the hearing. Everyone attending can reasonably expect that the meeting will proceed in an environment of mutual respect among the legislators, witnesses, and audience that is free from disruptions. One commentator has observed that “[p]reventing disturbances at public meetings is essential to achieving the dual goals of fostering citizen participation and ensuring the efficient accomplishment of public business.” (“Civility in Government Meetings: Balancing First Amendment, Reputational Interests, and Efficiency.” 10 First Amend. L. Rev. 51 (2011)) The right to attend and participate in a committee meeting is necessarily balanced with the committee’s right to ensure that its proceedings are not disrupted.

    But legislative committee meetings are occasionally disrupted by verbal outbursts, such as cheering, booing, shouting, or applauding, by persons attending the meeting. Signs, clothing, or distracting electronic or photographic equipment may have a similar, if less audible, disruptive effect on the ability of persons to freely testify on legislation. These distractions illustrate the need to balance the public’s right to freedom of speech and to petition the government with the right of the legislative branch and committee witnesses to engage in a process that ensures decorum and civility.

    The Colorado constitution, state statutes, and legislative rules all authorize the General Assembly to preserve decorum generally and in legislative committee meetings specifically. Article V, section 12 of the constitution authorizes each house to adopt rules that address disorderly behavior and enforce obedience to its process.

    State statute authorizes the Senate and House to adopt rules or joint rules or to authorize the Senate President or the Speaker to adopt regulations protecting the safety of legislators, staff, and the general public. The rules must be “consistent with public convenience, the public’s right of freedom of expression and to peaceably assemble and petition government, and the established democratic concepts of the openness of the legislative process.” This includes the ability to adopt rules:

    • Regulating admission to legislative areas;
    • Prohibiting signs, banners, placards, and similar display materials without authorization;
    • Restricting the placement of television and photographic equipment;
    • Authorizing the sergeants-at-arms to clear the committee rooms and the chamber galleries if there is a disturbance that disrupts legislative proceedings or endangers legislators, staff, or the public; and
    • Addressing any other matters that may be appropriate for the orderly conduct of the General Assembly’s affairs and protection of the health, safety, and welfare of all the participants in the legislative process.

    Senate Rules 22A and 31 and House Rules 23 and 25 address decorum in the chambers and committee rooms. House committee chairpersons are specifically authorized to have a sergeant-at-arms remove persons who impede, disrupt, or hinder a meeting or endanger the meeting’s participants. The Senate does not have a similar rule, but Mason’s Manual of Legislative Procedure, section 805, suggests that Senate committee chairpersons also have this authority. Fortunately, removing a person or persons from a committee hearing for disruptive behavior occurs very rarely.

    Before 2013, the Chief Clerk of the House of Representatives and the Secretary of the Senate each developed policies for the use of committee rooms. Each policy prohibits signs, placards, and banners, as well as clothing with words, pins, or buttons that express support or opposition to issues before a legislative committee. During the 2013 legislative session, Senate and House leadership directed staff to post the “Welcome to the Colorado General Assembly” signs in the hallways outside of the Senate and House committee rooms.

    Legislative staff have also created a “Guide to Public Hearings” to supplement the signs. It’s available under “General Legislative Information” on the General Assembly’s website.

    So, welcome to the Colorado General Assembly! Hopefully, the information in this article will help ensure that, whether you are coming to the Capitol to testify on a bill or just watch a committee meeting, your experience will be respectful, civil, and free from disruption.

  • Statutory Construction: What was the General Assembly Thinking?

    by Julie Pelegrin

    Editor’s Note: This week’s article is the sixth in our series on statutory construction. For previous installments, click on “statutory construction” in the tag cloud.

    If the language of a statute is not plain, the court will try to interpret it by applying various presumptions: The statute is intended to be constitutional; the interpretation should lead to a just and reasonable, not absurd, result; every word matters and should be read in context; the interpretation should not require an impossible task; and the interpretation should benefit the public interest.

    Taking all of these presumptions into consideration, the court will next look to the legislative intent: What did the General Assembly intend to accomplish by passing the statute?

    Section 2-4-203, C.R.S., specifies several items the court may consider in trying to interpret an ambiguous statute:

    Legislative History

    In Colorado, the legislative history is somewhat sparse. The General Assembly does not generate long committee reports that explain the intent and research behind each bill as Congress does. In Colorado, the legislative history consists of the various versions of the bill and the amendments considered in committee and on second and third reading. Legislative history also includes the testimony offered on the bill in committee and the debates on the bill. The court may consider witnesses’ and the bill sponsor’s explanations of a bill and what the bill is intended to accomplish.

    Legislative Intent

    In interpreting an ambiguous statute, the court may also consider the General Assembly’s intent in passing the statute. To understand legislative intent, the court looks to any legislative declarations or statements of legislative intent that were passed with the statute. Although legislative declarations are not binding on a court, they do provide some indication of what the statute is supposed to mean and how it should be applied.

    The court may also consider the title of the bill that created or amended the ambiguous statute. In interpreting a workers’ compensation provision, the Colorado Supreme Court held that the statute should be read the same way that certain recommendations by a national commission on workers’ compensation laws were read, because the title of the bill that amended the statute was “Concerning Workmen’s Compensation, and Providing Extended Coverage Necessary to Conform to Essential Recommendations of the National Commission on State Workmen’s Compensation Laws….”

    A court may also consider later legislation that amends the underlying statute the court is trying to interpret, but only if the later legislation passes. If the General Assembly introduces a bill to clarify a statute, but the bill doesn’t pass, the court does not consider the intended clarification in interpreting the statute. If the bill does pass, however, it is entitled to “great weight” in construing the original statute.

    Circumstances of Legislation

    A court may also look to the circumstances that surrounded the adoption of the statute. This is similar to considering the legislative history in that the court considers the explanation a sponsor provides for why he or she introduced a bill. The court may also look at who testified for or against a bill as some indication of the persons the bill was intended to affect. For example, in Gleason v. Becker-Johnson Associates, the court found that a statute was intended to apply to the persons involved in constructing a building, not persons who later inspected the finished building, partly because all of the witnesses were builders, architects, and engineers.

    Interpretation by an Administrative Agency

    The court will consider how an administrative agency interprets legislation. If an administrative agency is responsible for implementing a statute, and the agency adopts rules or policies that define terms or explain how the agency will apply the statute, a court will give deference to the agency’s interpretation in deciding what the statute means. But the court is not required to follow an agency’s interpretation, and the court will not follow the agency interpretation if it contradicts the plain language of the statute.

    The Common Law or Similar Statutes

    When interpreting an ambiguous statute, the court may consider how statutes on related or similar subjects are interpreted. The court may also look to the common law on the same subject to help interpret an unclear statute.

    The common law is the collection of rules of action and principles relating to the government and the security of persons and property that have arisen from usage and customs over centuries and from appellate court decisions that apply and interpret these rules and principles. The statutes are assumed to follow the common law. If the General Assembly intends for a statute to abrogate or change rights that are available under the common law, the statute must expressly state or very clearly imply that intent.

    Interpretation Favors the Person Intended to Benefit

    Finally, if the court has gone through the full analysis and it still isn’t sure what the statute means, as a last resort the court will generally resolve the ambiguity in favor of the person or party that the statute is supposed to benefit – consider it the legal equivalent of “tie goes to the runner.” For example:

  • Bills, Amendments, Legal Opinions and Research, Explanations – OLLS is Ready to Serve

    by Dan Cartin

    Legislative Legal Services is often referred to as “the drafting office.” But we are actually the General Assembly’s nonpartisan legal counsel and staff agency. We have a statutory and ethical duty to represent the General Assembly as a whole. And we are obligated to serve the best interests of our institutional client, the General Assembly, as distinguished from the individual interests of any specific legislator. We balance that obligation with our statutory direction to prepare bills, amendments, and other documents for individual legislators and to maintain strict confidentiality when doing so.

    In addition to our primary function of drafting bills, resolutions, and amendments, the Legislative Legal Services staff, upon request, can provide legislators with written materials explaining current Colorado law and other state and federal law that can assist them in explaining their bills. We do our best to provide the requested materials as soon as practicable, time permitting and on a first-come, first-served basis. Examples of ancillary materials available upon request, time permitting, include:

    • More detailed, written explanations of bills;
    • Summaries of changes made to a bill in committee, in the first house, or in the second house;
    • Tables comparing bill provisions;
    • Explanations of state and federal statutes;
    • Summaries of case law relevant to a bill;
    • Summaries of case law interpreting a particular statute or issue;
    • Legislative histories of issues and bills;
    • Legislative histories of constitutional and statutory provisions;
    • Comparisons of Colorado law with the law of other states on particular issues;
    • Lists of all Colorado statutes addressing an issue; and
    • Legal opinions regarding legislation.

    This list is not exhaustive. If a legislator needs or would like other materials or assistance not listed, he or she should please ask us. If it’s something we can provide, we will.

    With regard to legal opinions, occasionally a legislator will ask us for a legal opinion on an issue that relates to pending legislation. We hold these requests in strictest confidence. We will not release a written legal opinion to other persons without the permission of the legislator who requested it. And we will give the same answer if another legislator asks us the same question, which will result in identical legal opinions for different legislators.

    Please visit the Legislative Legal Services website for a better idea of the types of services and products we can help with. The link for “Legal Topics,” among others, is an especially good resource for information concerning recurring legislative legal topics and issues.

    We encourage legislators to fully utilize the Legislative Legal Services staff for all of their legislative needs during the session, including those described here that go beyond bill and amendment drafting. We are here to provide the services and support that help all of the members of the 70th General Assembly achieve a successful legislative session in 2016.

  • Gallagher Amendment Reduces Residential Property Tax Bills

    by Julie Pelegrin

    Recently, every real property owner in Colorado received a property tax bill for 2016. The bill states the actual value of the real property, the assessed value, the number of mills levied by the various local governments with jurisdiction over the property, and, finally, the amount owed. For many persons, their annual property tax bill is one of life’s great mysteries. Who collects this money? How do they calculate the property tax owed? How is real property valued for taxation? What is the Gallagher amendment everyone talks about, and how does it affect property tax? And what is a mill, anyway?

    First, the easy part: A primer on property tax.

    Counties collect property tax for themselves and on behalf of the other local governments or special districts that are located within each county. When you look at your bill, it will probably have a mill rate for the county, the municipality, the school district, and maybe one or more special districts in which your property is located.

    A mill is one-thousandth of a dollar, which means one mill is equivalent to one-tenth of a cent or $0.001. The mill rate is the total number of mills that a local government – or multiple local governments – levies against the assessed value of a piece of property. To calculate your property tax bill, the county treasurer multiplies the assessed value of property by the total mill rate and divides the product by 1,000.

    Every two years, each county assessor determines the actual value of all taxable real property located in the county. Under the Taxpayer’s Bill of Rights (TABOR), the county assessor must determine the value of residential property solely by using the market approach to appraisal, which is based on recent sales of comparable properties. The assessor uses market value and other methods to determine the actual value of other taxable real property.

    But your property tax bill isn’t based on the actual value of your property; it’s based on a percentage of the actual value, which is called the assessed value. The percentage is called the valuation for assessment ratio, commonly referred to as the assessment rate. There are actually two assessment rates. The assessment rate for residential real property is 7.96% for the 2015-16 property tax year, and the assessment rate for all other taxable real property for every property tax year since 1985 is 29%.

    This is how your property tax bill is calculated. The county assessor calculates the assessed value of your residential real property by multiplying the actual value of your residential real property by 7.96%. Then, the county treasurer multiplies the assessed value of your property by the number of mills levied by the local governments where your property is located and divides the product by 1,000, and – voila – you have your property tax bill.

    So here’s the hard part: The Gallagher Amendment.

    In 1982, the General Assembly referred a constitutional change dealing with property tax to the statewide ballot; the change passed at the general election held that fall. Part of that referred measure is called the Gallagher Amendment, and it controls the assessment rate for residential real property.

    The Gallagher Amendment directs the General Assembly to review the assessment rate for residential real property every other year, starting in 1985. The General Assembly was required to look at the total statewide assessed value of all taxable real property in 1985 and calculate what percentage of that total came from taxable residential real property. And for every year since then, the General Assembly must make sure that the percentage of the assessed value of taxable residential real property relative to the assessed value of all other taxable property remains essentially the same.

    Part of the constitutional change passed in 1982 set the initial residential real property assessment rate at 21%, subject to subsequent adjustments by the General Assembly, and fixed the assessment rate for all other taxable real property at 29%, with no authority for adjustments. So, to maintain the percentage of assessed value of residential real property relative to the assessed value of all other taxable real property, the General Assembly can only adjust the assessment rate for taxable residential real property. And the adjustment usually lowers the residential assessment rate.

    Since 1985, the assessment rate for taxable residential real property has dropped from 21% to 7.96% to keep the proportion of statewide assessed value of taxable residential real property to the assessed value of all other taxable real property at about 46% to 54%.

    What’s the real impact of decreasing the assessment rate for residential real property?

    A lower assessment rate for residential real property usually means that homeowners and landlords pay less property tax, but it generally has a negative impact on property tax collections by school districts and other local governments (the state does not collect property tax). Most school districts have more residential real property than other real property. So, as the residential assessment rate has decreased, the amount of property taxes that these school districts and other local governments collect has decreased, because the school districts and local governments can’t raise the mill levy to offset the rate decrease without voter approval under TABOR.

    Also, in some years, the assessment rate for residential real property should actually have been increased to maintain the proportion of assessed value, but increasing the assessment rate requires voter approval under TABOR. So, in those years, the assessment rate for residential real property has remained unchanged and the amount of property tax revenue that the school districts collect is lower than it otherwise would have been if the residential assessment rate had increased.

    All of this means that the state must use more state revenues to pay the costs of public education. It also means that the amount of property taxes collected statewide by local governments has generally decreased, which means the state pays for more services that would otherwise be provided locally.

    So, while the Gallagher Amendment helps keep your residential property tax bill down, it decreases the amount of property tax revenues available to pay for local government services and increases the demands on the state budget.

  • Civility is Key to a Successful Legislative Session

    by Julie Pelegrin

    With the opening of the Second Regular Session of the 70th General Assembly, now might be a good time to spend a few minutes thinking about civility and why it’s important. The Colorado General Assembly actually doesn’t have a problem with civility; the debates under the Gold Dome are, in most instances, very civil and relationships are generally cordial. But the General Assembly is facing many important issues this year and there is significant disagreement on how to address most of them. And it’s an election year. So reviewing what we know about the importance of civility and what civility means is time well spent.

    Parker Palmer QuoteFirst – what is civility? The Institute for Civility in Government says:

    Civility is about more than just politeness, although politeness is a necessary first step. It is about disagreeing without disrespect, seeking common ground as a starting point for dialogue about differences, listening past one’s preconceptions, and teaching others to do the same. Civility is the hard work of staying present even with those with whom we have deep-rooted and fierce disagreements. It is political in the sense that it is a necessary prerequisite for civic action. But it is political, too, in the sense that it is about negotiating interpersonal power such that everyone’s voice is heard, and nobody’s is ignored.

     

    Civil Politics describes their view of civility as:

    the ability to disagree productively with others, respecting their sincerity and decency. Civility does not mean agreement. We think citizens are well served when political parties represent different viewpoints and then compete vigorously to recruit voters to their side.

     

    Second – why is civility important? Recently, an organization called FairVote teamed with the Bipartisan Policy Center to look at state legislatures in which one of the chambers was evenly split between Republicans and Democrats and how the chambers made power-sharing work. In their report – Best Practices for Collaborative Policymaking – they looked at the Oklahoma Senate (2007-08), the Oregon House (2011-12), and the Washington House (1999-2001). While tied, each chamber adopted what is called a “co” agreement – pairs of members from each party held the leadership and committee chair positions.

    Dwight Currie QuoteInterestingly, legislators from Oklahoma and Oregon described their time under the “co” agreements as being very productive and cooperative. Legislators in both states remembered these years as times of great bipartisan agreement and civility.

    In Washington, however, the legislators remembered their years of power-sharing as a time of gridlock during which few significant bills were passed and partisanship was especially rampant.

    Why the difference?

    The report concludes that one reason is a difference in how the legislative rules in each state distributed the power to control the agenda. In both Oklahoma and Oregon, the rules ensured that both parties were able to get their legislation on the committee calendar and on the House second reading calendar without being blocked by the other party. In Washington, however, committee co-chairs had to agree to calendar legislation for committee hearings, and each co-Speaker could block consideration of the other party’s legislation on second reading. Each party used this power in retaliation for actions by the other party, leading both parties to feel shut out of the process.

    But, in talking with legislators from all three states, the researchers concluded that the relationships among legislators – and especially among the leadership in both parties – were more important to achieving a successful legislative session than the rules. The report quotes political scientist Thom Little, commenting on power-sharing arrangements: “Trust between the leadership of the parties is by far the most important factor. No matter what the rules are, if the two leaders don’t trust each other, it will be a disaster.”

    And in Oklahoma and Oregon, where the power-sharing agreements were successful, the researchers found that the co-chairs of committees and the rest of the legislators in the House followed the example of trust and mutual respect set by the co-Speakers. Further, the co-Speakers specifically emphasized civility and cooperation from the beginning of the session.

    Even though Colorado’s General Assembly isn’t operating under a power-sharing agreement within a single house, control of the chambers is split between the parties: Republicans hold the majority in the Senate and Democrats hold the majority in the House. This means that relationships of trust, mutual respect, and civility between the leadership in the two chambers and among all of the legislators are the key to a successful legislative session for the entire General Assembly.Mary Wortley Mantagu Quote

    In May of 2011, the NCSL Executive Committee adopted a Civility Accord. It sets out six principles of civility:

    • Respect the right of all Americans to hold different opinions.
    • Avoid rhetoric intended to humiliate, de-legitimatize or question the patriotism of those whose opinions are different from ours.
    • Strive to understand differing perspectives.
    • Choose words carefully.
    • Speak truthfully without accusation and avoid distortion.
    • Speak out against violence, prejudice, and incivility in all their forms, whenever and wherever they occur.

    And the Accord closes with:

    We … pledge to exhibit and encourage the kind of personal qualities that are emblematic of a civil society: gratitude, humility, openness, passion for service to others, propriety, kindness, caring, faith, sense of duty and a commitment to doing what is right.

     

    Good words to keep in mind as the legislative session progresses.

  • Sponsors and Deadlines and Bills, Oh My!

    by Darren Thornberry and Patti Dahlberg

    To sponsor, or not to sponsor – WHEN is the question. But there’s no time to sully soliloquies when bill deadlines are upon us and zipping by. Perhaps new and returning legislators, capitol staff, and the public may all find a primer on sponsoring bills to be useful.checklist

    If you like it, then you better put your name on it.
    First things first: Legislators who intend to sponsor a bill, whether as a prime, joint prime, or co-sponsor, have to let the drafter know! Our tenacious drafters will do just about everything short of sending a raven to verify the wishes of a potential bill sponsor, so here’s to e-mails checked, cell phones on, and plans plainly stated.

    We hope you’re not surprised to learn that the 2016 Legislative Session convenes next Wednesday, January 13. Legislators must have begun working on their bill requests and their bills’ order of introduction long before the mighty bang of the gavel starts the session.

    In fact, by the first day of session legislators already should have:

    • ▢  Their first three (of the five allowed by rule) bill requests in the system and drafted.
    • ▢  Decided which of their bills will be their “prefile” or first bill introduced, and have turned it in for introduction. (Deadline is Friday, January 8 – yikes.)
    • ▢  Decided which two of their bills will meet the other early introduction deadline and have them drafted and ready or close to ready for introduction. (Introduction deadlines are Friday, January 15, for Senate bills and Tuesday, January 19, for House bills.)

    SPONSORSHIP FAQ: No need to sweat the rules about five-bill limits and joint prime sponsorship. Follow these checklists to sponsorship bliss!

    Five-bill limit.

    • ▢  The joint rules limit legislators to five bills, excluding any committee or sunset bills. [Joint Rule 24 (b) (1) (A)]
    • ▢  House members can be a prime or joint prime sponsor on as many Senate bills as they desire because second house bills do not count against the five-bill limit. [Joint Rule 24 (b) (1) (C)]
    • ▢  Senate members can be a prime or joint prime sponsor on as many House bills as they desire because second house bills do not count against their five-bill limit. [Joint Rule 24 (b) (1) (C)]
    • ▢  Legislators who want to request more than the five bills allowed by rule must obtain permission to do so from their house’s Leadership. [Joint Rule 24 (b) (1) (A)]

    Joint Prime Sponsorship.

    • ▢  Joint prime sponsorship means two legislators in the same house decide to jointly and equally sponsor a bill through that house’s legislative process.
    • ▢  Joint prime sponsorship counts against both legislators’ five-bill limit in the first house. A legislator cannot be added as a joint prime sponsor in the first house if that legislator has already submitted five bill requests, unless that legislator first obtains permission from Leadership.
    • ▢  Joint prime sponsorship in the second house does not count against the five-bill limit for either legislator.
    • ▢  Legislators must decide to jointly prime sponsor a bill before the bill is introduced in the applicable house.
    • ▢  Both joint prime sponsors must verify their desire to be joint prime sponsors with the bill’s drafter or with the OLLS front office staff.
    • ▢  Joint prime sponsorship is indicated on the bill by the word “and” (in bold) between the first two names listed as sponsors.
    • ▢  The rules for joint prime sponsorship are similar for the House (House Rule 27A) and the Senate (Senate Rule 24A).

    One Last Thing: The regular bill request deadline is Tuesday, January 19. Best to have a good idea now of what your regular bill requests will be!

    Bill Requests 2

  • How Federalism Shapes the People’s Courts

    by Jessica Wigent

    In a recent webcast presented by the Council of State Governments, Lisa Soronen, executive director of the State and Local Legal Center, and Paul Clement, a former U.S. Solicitor General, discussed federalism, how it guides our complex judicial system, and how courts’ decisions impact state governments. It’s a useful review as we come to the close of 2015 and look ahead to court cases in the coming year.

    Federalism, from the Latin root foedus, or “formal agreement or covenant,” is a system of government where authority is allocated between national and state governments— and for our purposes here, state and federal courts.

    Alexander Hamilton, “the ten dollar founding father without a father,” as he is described in the celebrated Broadway play named for him, summed up the usefulness of our system, calling it “a double security to the people,” because if our rights “are invaded by either [our state or federal government], [we] can make use of the other as the instrument of redress.”

    So how does this intricate balance of power work?

    The federal courts:

    • Answer constitutional questions (Was a fundamental liberty at stake in the gay marriage debate? The Supreme Court said yes in Obergefell v. Hodges)
    • Handle interstate tussles (The Supreme Court is currently deciding whether to hear Oklahoma’s and Nebraska’s lawsuit against Colorado over recreational marijuana)
    • Step in when Congress passes a law some say is murky (What did Congress really mean to say about subsidies and federal and state health exchanges in the Affordable Care Act? The Supreme Court answered this question in King v. Burwell)
    • Hear cases where the United States is suing or being sued (Remember when then-President Richard Nixon tried to tell the New York Times and the Washington Post they couldn’t publish the then-classified Pentagon Papers? In New York Times Co. v. United States, the Supreme Court said the First Amendment protected the paper’s right to publish the documents detailing the country’s involvement in Vietnam)

    And the state courts? Well, they decide (almost all of) the rest—from traffic tickets to whether awarding state-funded tuition scholarships to students who attend sectarian schools violates the Colorado Constitution. (Whether the latter violates the First Amendment of the U.S. Constitution is an issue the federal courts would have to decide.)

    The structures of the federal and state courts are fairly similar:

    Level Colorado State Level Courts Federal Level
    Lower courts (hold trials, make findings of fact and law) County and district courts, scattered throughout 22 judicial districts across the state, and specialized courts (like our seven water courts) U.S. District Court, District of Colorado
    Intermediate courts (hear appeals from the lower courts) Colorado Court of Appeals 10th Circuit Court of Appeals
    The high court (hears appeals from the intermediate courts, sometimes) Colorado Supreme Court U.S. Supreme Court

    So we’ve got the levels down; we know which cases end up in which court. Now, how do cases get decided?

    Again, both state and federal courts work similarly. As Soronen explained, the courts use a hierarchy of laws when making their decisions. First, they look to the (federal and/or state) constitution, then to statutes passed by the Congress/legislature, then to rules and regulations created by administrative agencies (like the I.R.S. or the Colorado Department of Education), and, finally, they look to case law and common law.

    The law develops through the expansion of case law—as courts answer more and more questions and make rulings on certain issues, they have more and more references to turn to and follow when considering their decisions. This is called applying precedent—or stare decisis, meaning Let it Stand!—and it is (usually) the guiding principle of our judicial system, aiding both we the people and the courts in many ways:

    • It’s efficient
    • It’s fair
    • It gives the system predictability
    • It’s a check on arbitrary behavior

    So when does precedent apply? Lest you think we forgot the title of this post (we are supposed to be talking about federalism after all) the precedent of a state court applies just to that state’s courts. If the Colorado Supreme Court says it tastes like chicken, so do the Colorado Court of Appeals and the county and district courts. But whatever it tastes like in California or New Jersey or Texas doesn’t affect what it tastes like in Colorado. In the federal system, the same hierarchy applies within the districts and circuits, except that, when the U.S. Supreme Court says it tastes like chicken, every court in our fair land—state and federal— says it does too.

    Soronen explained that state courts are not bound by interpretations of federal law made by the federal district courts or federal courts of appeals, even in the same state! And this means? Judges in state courts throughout Colorado aren’t bound by rulings made by a judge from the U.S. District Court, District of Colorado or the Tenth Circuit Court of Appeals. This can get confusing fun (States interpret state and federal law! Federal courts can’t tell state courts what to do!) and is a product of the philosophical compromise of our Founding Fathers that led to our federalist system of government.

    We Coloradans would do well to understand how federalism and the courts work, so we can better understand why TABOR has been challenged in both state and federal courts, why our friendly state neighbors to the east and southeast are suing us over marijuana in federal and not state court, and why, at least for now, our school voucher cases have only been heard in state court.

    At the Constitutional Convention in 1787, Delaware Delegate John Dickinson famously said: “Let our government be like that of the solar system. Let the general government be like the sun and the states the planets, repelled yet attracted, and the whole moving regularly and harmoniously in several orbits.” What we ended up with is more complicated than what he envisioned, but it’s a system, and it’s ours.

  • A Holiday Message

    ‌wintry scene 2015

    HAPPY HOLIDAYS FROM THE OLLS!