Colorado LegiSource

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

Author: olls

  • U.S. Supreme Court Holds Federal Tax Subsidies Apply to Both Federal and State-run Health Exchanges

    by Kristen Forrestal

    On June 25, the United States Supreme Court announced its decision in favor of the government in King v. Burwell. The case, which could have unwound the Patient Protection and Affordable Care Act (ACA), involved a challenge to the 2012 IRS ruling that individuals purchasing private health insurance in health insurance exchanges, regardless of whether the exchanges are federal or state-run, are eligible for tax subsidies.

    Signed into law on March 23, 2010, the ACA adopted three key reforms:

    • A ban on insurers taking into account a person’s pre-existing conditions when selling health insurance or calculating premiums;
    • The creation of a mandatory health care provision requiring most Americans to purchase health insurance; and
    • Refundable tax credits to individuals purchasing insurance whose household incomes fall between 100% and 400% of the federal poverty level.

    The ACA also requires that states either establish their own exchanges in which people can purchase health insurance or, in the alternative, allow the people to purchase insurance in the federal exchange.

    The central issue of the Burwell case was whether the ACA’s interlocking reforms apply equally in each state, and, more specifically, whether the act’s tax credits are available in states using the federal, and not a state-run, exchange.

    The plaintiffs, from Virginia, challenged a section of the ACA that describes the meaning of premium assistance or the subsidies for taxpayers who purchase qualified health plans “through an Exchange established by the State.” They suggested that limiting subsidies to only those who bought insurance on state exchanges was an intentional choice made by lawmakers and was meant to pressure states to establish exchanges.

    Arguing that they were ineligible for subsidies because Virginia had not established a state exchange, the plaintiffs claimed that they should be exempt from the ACA’s mandatory coverage requirements because the cost of health insurance would exceed 8% of their household incomes, qualifying them for a hardship exemption (and freeing them from paying a fine for not having health insurance).

    The Court’s task was to determine the correct reading of the law. If the statutory language was plain, the Court would enforce it according to its terms. If not, the Court would read the words in their context and with a view to their place in the overall statutory scheme.

    Warning that provisions may seem plain when viewed in isolation but ambiguous when read in the broader context of the statute, the Court explained that the meaning of “established by the State” was not so clear.

    According to the Court, the provision that establishes a federal exchange for states that do not establish their own suggests that state and federal exchanges are equivalent. Additionally, the Court noted that several other provisions of the ACA assume subsidies are available on both state and federal exchanges.

    The Court also criticized the “more than a few” examples of “inartful drafting” throughout the act, noting that several key parts were written behind closed doors rather than through the traditional legislative process and that a complicated budgetary procedure limited opportunities for public debate and amendments.

    In the end, the Court rejected the plaintiffs’ interpretation of the law, stating that limiting subsidies to only those persons on state exchanges would destabilize the individual insurance market, because many individuals who couldn’t afford health insurance without the subsidies would be exempt from purchasing it. These consequences, Chief Justice John Roberts wrote, would create an economic death spiral and were exactly what the law was meant to avoid, as “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

    It is important for lawmakers to note an additional outcome of the Court’s decision is that a future presidential administration cannot change the ruling of the Court (for instance, by reinterpreting how the subsidies are offered) without changing the act itself.

  • Statutory Construction: Legislative Intent and the Presumptions Used to Interpret Statutes

    by Julie Pelegrin

    Editor’s Note: This week’s article is the fifth in a series on statutory construction. For the earlier articles, see postings on Sept. 12, 2013; and July 31, August 21, and September 18, 2014. Or search the term “statutory construction”.

    As has been discussed in previous articles, when a court must apply a statute to the facts and decide what the statute means, it will first look to the plain language of the statute. Assuming the statute is clear and unambiguous, the court will not use any other tools or rules to interpret the statute; if the language is plain, then the statute means what it says.

    But, if the language is not plain and the statute could be read to have more than one meaning or application, then the court will look to the General Assembly’s intent in enacting the statute.

    In part 2 of article 4 of title 2, C.R.S., the General Assembly enacted several guides to help the courts – and individuals and state agencies – read the statutes and determine what the General Assembly intended to allow or prohibit. This week’s article looks at legislative intent, including the general intent that statutes apply to future actions and events.

    General intentions in enacting statutes: §2-4-201, C.R.S.
    Under section 2-4-201, C.R.S., every statute is based on five underlying presumptions:

    1. The statute is intended to be constitutional with regard to both the United States and Colorado constitutions;
    2. Every part of the statute is intended to be effective – no superfluous words or sections;
    3. When implemented, the statute is intended to have a just and reasonable result;
    4. The statute is intended to be feasible – i.e., someone is supposed to be able to implement the statute; and
    5. If implementing the statute one way will benefit the public interest and implementing it another way will benefit a private interest, the General Assembly intends to benefit the public interest.

    In applying these presumptions, the courts have taken some of them one or two steps further. A court not only presumes that a statute is constitutional, if a person claims that a statute is not constitutional, the court requires that person to prove the statute’s unconstitutionality beyond a reasonable doubt. And, if a court can read a statute two ways – a constitutional way and an unconstitutional way – it must choose the constitutional reading.

    Every word in every statute is supposed to have meaning and be effective. To apply this presumption, the courts read the parts of each statutory section, part, and article as a whole and interpret the various portions consistently with one another. If it appears that portions of a statute conflict, the court will try to harmonize those portions and, as much as possible, give a consistent and sensible effect to every portion.

    The courts have added a presumption of their own with regard to the words in statutes. The court presumes that, when it amends or creates a statute, the General Assembly acts with deliberation and full knowledge of any previous case law interpreting or defining the words used in that area of the statutes. If the General Assembly uses the same words that the court has previously interpreted in a related area of statute, and does not clarify that it intends to change the interpretation of the words, the General Assembly is presumed to agree with the court’s earlier interpretation. If the General Assembly amends a statute that a court has previously interpreted, the court assumes that the General Assembly agrees with the court’s interpretation of any portion of the statute that it does not amend.

    The statutes are intended to have a “just and reasonable result” and are intended to be implemented. So, a court will interpret a statute according to the General Assembly’s intent, rather than according to a literal interpretation of the words, if the literal interpretation would defeat the General Assembly’s intent or lead to an absurd result. And a court will not interpret a statute in a way that requires an impossible task.

    Obviously, these presumptions sometimes conflict with one another. In that case, the court decides how to balance the competing presumptions in the best way possible to meet the General Assembly’s intent in passing the statute.

    Statutes are Presumed to be Prospective: §2-4-202, C.R.S.
    Section 2-4-202, C.R.S., is short and relatively clear: “A statute is presumed to be prospective in its operation.” So, unless the General Assembly specifically says differently, each new statute and amendments to existing statutes apply only to the actions and events that occur on or after the date that the statute takes effect. See “When Does an Act Become a Law? It depends.” for an explanation of when an act takes effect.

    But the General Assembly in certain cases will specify that an act take effect on a date that is earlier than the date on which the act passes or that the act applies to actions or events that occur before, on, or after the effective date of the act. See “Ex Post Facto Laws, Effective Dates, and Legislative Time Travel” for an explanation of the constitutionality of retroactive laws.

  • U.S. Supreme Court Settles Legality of Same-Sex Marriages

    by Debbie Haskins

    In a landmark ruling issued on June 26, 2015, the United States Supreme Court ruled in Obergefell v. Hodges (pronounced “OH-ber-guh-fell”) that the right to marry is a fundamental right under the U.S. Constitution. In a 5-4 decision, written by Justice Anthony Kennedy, the Court held that:

    1. States cannot ban same-sex marriages and are required, upon request, to issue a marriage license to two people of the same sex; and
    2. States must recognize a marriage between two people of the same sex if the marriage was lawfully licensed and performed in another state.

    Justice Kennedy based the majority opinion on four principles:

    • The right to personal choice regarding marriage is inherent in the concept of individual autonomy;
    • Same-sex couples have the same right as opposite-sex couples to enjoy intimate association;
    • Marriage safeguards children and families, and the right to marry cannot be conditioned on the capacity or commitment to procreate;
    • Marriage is a keystone of the nation’s social order from which no one should be excluded.

    supreme courtHaving found marriage to be a fundamental right, the Court next considered whether the challenged law unconstitutionally infringes on this right. The Court concluded that state laws preventing same-sex marriage are unjustified infringements on the fundamental right to marry under the due process and equal protection clauses of the 14th amendment to the U.S. Constitution.

    In its opinion, the Court reviewed the history of marriage, noting that “after years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage.” The majority rejected the dissent’s argument that sufficient debate had not occurred in the country to make this decision at this time. Justice Kennedy wrote, “Individuals need not await legislative action before asserting a fundamental right.”

    As a result of this decision, every state statute or state constitutional provision that bans same sex-marriage is now invalid.

    The Rise and Fall of DOMA Laws

    As Justice Kennedy noted, the public debate about same-sex marriage laws has been on-going in this country for the last two decades. In 1993, the Hawaii Supreme Court ruled that a law denying same-sex couples the right to marry violated the state’s constitutional equal protection guarantees unless the state could show a “compelling reason” for this discrimination. After the Hawaii decision raised the possibility that states would start recognizing same-sex marriage, several state legislatures adopted statutes or amended their constitutions to define marriage as a relationship that could only exist between a man and a woman. These laws are referred to as “Defense of Marriage Acts” or “DOMA.” Congress enacted a federal DOMA law in 1996, which limited the availability of over 1000 federal benefits to only those marriages that consist of a relationship between one man and one woman as husband and wife. According to the National Conference of State Legislatures, by the end of 2000, 40 states had either adopted a DOMA-type statute or constitutional provision or both. Colorado adopted its DOMA statute in 2000, and Colorado voters approved a DOMA constitutional provision in 2006.

    However, in the last ten years, opinions about same-sex marriage have been changing. Eleven states and the District of Columbia have now enacted legislation authorizing same-sex marriage. On June 26, 2013, the U.S. Supreme Court struck down the federal DOMA law in U.S. v. Windsor holding that the restrictions on federal benefits violated equal protection and due process for same-sex couples who were legally married in a state that Obergefell text box 1recognized same-sex marriages. In that decision, also written by Justice Kennedy, the Court emphasized that states have the power to define marriage. On the same day, the Court also held that the proponents of Proposition 8, a voter-approved ban on same-sex marriage in California, did not have the legal right to defend the measure in court. Although based on the technical issue of standing, the decision in Hollingsworth v. Perry made same-sex marriages legal in California.

    After these decisions, same-sex marriage bans toppled in state and federal courts across the country. Federal appeals courts in the Fourth, Seventh, Ninth, and Tenth Circuits all ruled that state bans on same-sex marriage are unconstitutional. The U.S. Supreme Court refused to hear appeals in these cases on October 6, 2014, causing the Colorado Attorney General to declare that all legal barriers to same sex marriages in Colorado, which is in the Tenth Circuit, were removed. As a result, same-sex marriages became legal in Colorado on October 7, 2014.

    Meanwhile, the Sixth Circuit Court of Appeals upheld DOMA laws from Kentucky, Michigan, Ohio, and Tennessee, creating a split among the circuits in the country. Often when there is a circuit split, the U.S. Supreme Court will grant certiorari to resolve the matter, as it did in Obergefell.

    By the time the U.S. Supreme Court heard the Obergefell case from the Sixth Circuit, same-sex marriage was legal in the United States in 37 states either because of state or federal court decisions or because of state statutes authorizing same-sex marriage. As a result of the Obergefell decision, same-sex marriage is now legal in the entire country.

    Obergefell text box 2

  • Question Remains Whether Legislators Can Challenge Constitutionality of TABOR

    by Sharon Eubanks

    If a legislature does not have the power to impose new taxes or raise the amount of existing taxes, does the state enjoy a republican form of government? Some think not.

    supreme courtIn late May of 2011, 34 plaintiffs, including members of the General Assembly, local government officials, educators and education officials, and citizens of Colorado, filed a lawsuit against Governor John Hickenlooper in his official capacity and the State of Colorado in federal District Court for the District of Colorado. The lawsuit is entitled Kerr v. Hickenlooper because Senator Andy Kerr, one of three current legislators who are plaintiffs, is the first plaintiff listed on the complaint.

    The plaintiffs allege that the Taxpayer’s Bill of Rights (TABOR), Section 20 of Article X of the Colorado Constitution, violates the Guarantee Clause and the Equal Protection Clause of the United States Constitution and section 4 of the Colorado Enabling Act of 1875 by eliminating the General Assembly’s plenary power to legislate on matters of taxation and appropriations and thereby denying the state of Colorado and its citizens an effective representative democracy. As part of their claims, the plaintiffs argue that TABOR has inflicted an institutional injury upon all members of the General Assembly by removing their ability to enact taxes to provide for the state’s expenses, thus rendering the General Assembly unable to effectively fulfill its legislative obligations in a representative democracy and a republican form of government.

    In response to this lawsuit, the Attorney General filed a motion on behalf of Governor Hickenlooper in mid-August of 2011 asking the federal District Court to dismiss the lawsuit on several procedural grounds, including: 1) plaintiffs’ claims constitute nonjusticiable political questions that neither the federal District Court nor any other court can resolve on the merits; and 2) even if these questions could be resolved, the plaintiffs lack standing to bring the lawsuit. In July of 2012, the federal District Court denied the Governor’s motion to dismiss on all grounds except the Equal Protection Claim.

    The Governor appealed the federal District Court’s order to the federal 10th Circuit Court of Appeals. The appeal was assigned to a 3-judge panel of the 10th Circuit, which affirmed the federal District Court’s order. Next the Governor filed a petition for rehearing before the entire membership of the 10th Circuit Court of Appeals. The court denied the petition for rehearing en banc, and the Governor filed a petition for writ of certiorari appealing the federal District Court’s order to the United States Supreme Court. After both parties and several amicus curiae (“friends of the court”) filed briefs on the petition, the matter was scheduled for discussion at the January 9, 2015, conference of the Supreme Court Justices.

    The Justices’ conference is a private meeting of the Supreme Court Justices to discuss a short list of cases they are considering for review. The Justices’ decision to grant or deny review is usually announced shortly after the Justices’ conference. However, in this case, the Supreme Court did not immediately announce any decision as to whether the Supreme Court would hear the appeal of the procedural issues raised in Kerr v. Hickenlooper.

    Some speculated that the Supreme Court was waiting to announce its decision until after the Court issued its decision in another case it heard this term – Arizona State Legislature v. Arizona Independent Redistricting Commission et al. In this case, Arizona’s Legislature challenged the constitutionality of a redistricting commission created by ballot initiative to draw congressional districts. One of the issues raised in the Arizona State Legislature case is whether the Legislature has standing to bring the lawsuit, so the Supreme Court’s decision ingavel 5-8 this case could have implications for the Legislator-Plaintiffs’ standing in Kerr v. Hickenlooper. It turns out that this speculation was correct.

    On June 30, 2015, the last day of the Supreme Court’s October 2014 term, the Supreme Court issued a grant, vacate, and remand (GVR) order in Kerr v. Hickenlooper, which granted the Governor’s petition for writ of certiorari, vacated the decision of the 10th Circuit Court of Appeals, and remanded the matter back to the 10th Circuit for reconsideration in light of the Supreme Court’s decision issued the day before in Arizona State Legislature. In that decision, the Supreme Court held that the Arizona Legislature, as an institution, has standing to challenge the constitutionality of the redistricting commission even though the Supreme Court also upheld the constitutionality of the redistricting commission.

    As a result of the Supreme Court’s GVR order in Kerr v. Hickenlooper, the 10th Circuit has established July 31, 2015, as the deadline for parties and amicus curiae to file supplemental briefs on the impact of the Supreme Court’s decision in Arizona State Legislature on the issue of the Legislator-Plaintiffs’ standing.

    Watch for further developments in this lawsuit.

  • Colorado LegiSource is on hiatus

    The Colorado LegiSource will be taking a break for the next several weeks. We expect to resume weekly postings on July 9. In the meantime, if you have questions you would like answered or issues you would like to see discussed on the Colorado LegiSource, please contact us using our feedback form.

  • Gavels Adjourn the First Regular Session of the 70th General Assembly

    by Julie Pelegrin

    One hundred twenty days of heavy lifting, deep diving, guard-rail strengthening, collaborating, and serious negotiating came to an end Wednesday evening. At 8:02 p.m. in the House and 8:11 p.m. in the Senate, the Speaker and the President banged the gavels to adjourn the first regular session of the 70th General Assembly sine die.

    gavel 5-8As is usually the case when one party controls the House and another controls the Senate, there were many bills, resolutions, and memorials introduced, but not many passed. Starting in January, the General Assembly introduced 682 bills. By last night, they passed 367 of them – a pass rate of 54%. This compares with pass rates of:

    • 68% in 2013 and 72% in 2014 when the same party held the majority in both houses;
    • 56% in both 2011 and 2012 when control of the houses was split between the parties; and
    • Pass rates of 70% or higher for each of the 2007 through 2010 regular legislative sessions when the same party again held the majority in both houses.

    As usual, the General Assembly tackled several difficult and contentious issues – red light cameras, changes to birth certificates, K-12 assessments, rain barrels, guns, abortion, TABOR refunds, governmental immunity for school districts, requirements affecting peace officers, student data privacy, workforce development, felony DUI, and, of course, the state budget – just to name a few.

    Before the session ended, the General Assembly passed Senate Joint Resolution 15-028, which sets Wednesday, January 13, 2016, as the convening date for the second regular legislative session of the 70th General Assembly.

    Between now and next January, some legislators will be busy meeting in interim committees. In addition to the pre-existing statutory committees, the General Assembly approved several new interim committees. This interim, watch the Legislative Council website for meetings of:

    • The transportation legislative review committee;
    • The early childhood and school readiness legislative commission;
    • The police officers’ and firefighters’ pension reform commission;
    • The water resources review committee;
    • The interim committee to study vocational rehabilitative services for the blind;
    • The interim committee to study profiling-initiated contacts by law enforcement;
    • The interim committee on school safety and youth in crisis;
    • The Colorado health insurance exchange oversight committee – formerly known as the health benefit exchange implementation review committee; and
    • The off-highway vehicle task force.

    And the legislative staff agencies – Legislative Council Staff, the Office of Legislative Legal Services, the Joint Budget Committee Staff, and the State Auditors’ Office, as well as the staff of the House and the Senate – will be working the full interim. First, there’s session work to wrap up, including enrolling and finalizing the bills that passed, finalizing the state budget, and publishing the new Session Laws and the new statutes. Then staff will be busy reviewing executive branch rules, auditing state agencies and programs, staffing interim committees, researching legal, policy, and fiscal issues, and generally preparing for the next legislative session.

    And, starting July 9, we’ll be back publishing weekly articles to the LegiSource. If there’s a topic you would like us to address, please let us know by emailing feedback@legisource.net.

    Legislators who want to start working on their ideas for legislation for the next legislative session can submit research requests and bill requests to the Office of Legislative Legal Services by emailing olls.ga@coleg.gov or or calling (303) 866-2045.

  • What’s So Important About a 10-day bill? How About a 30-day bill?

    By Kathy Zambrano

    As the General Assembly moves toward the end of the regular legislative session, you may hear the terms “10-day bill” and “30-day bill” bouncing around the capitol hallways. What’s the meaning of these terms? And why does the General Assembly care?

    Section 11 of article IV of the state constitution specifies that every bill passed by the General Assembly must be presented to the Governor before it can become law. If the Governor approves of the bill, he or she signs it and returns it to the legislative house of origin with a letter detailing the date on and time at which he or she signed it. If the Governor vetoes a bill, it is returned to the house of origin along with an explanation of the Governor’s objections, which are then printed in the journal of the House of Representatives or the Senate, whichever is the house of origin.

    number 10If there are 10 days or more left in the legislative session when the Governor receives the bill, the Governor must act within 10 days after receiving the bill or it becomes law without the Governor’s signature. If there are fewer than 10 days left in the session or the General Assembly has already adjourned when the Governor receives the bill, the Governor has 30 days after the date of adjournment in which to approve the bill, allow the bill to become law, or veto the bill and file it with the Secretary of State.

    If the General Assembly is still in session when the Governor vetoes a bill, the bill is calendared for “consideration of Governor’s veto” in the house of origin. Two-thirds of the members in both the House of Representatives and the Senate must vote affirmatively in order to override the veto.

    So, a 10-day bill is a bill that the Governor must act on before the end of the legislative session. And, if the Governor vetoes a 10-day bill, the General Assembly may override the veto. With a 30-day bill, the Governor can wait until after the session is over to act on the bill. If the Governor decides to veto a 30-day bill, the General Assembly cannot override the veto.

    To comply with the constitution, the House of Representatives, the Senate, and the Governor’s office enter into a formal memorandum of understanding regarding the details for delivering and returning bills, computing the ten-day and thirty-day periods for action by the Governor, and calculating the date when bills become law without the Governor’s signature.

    Delivery and return of bills. The House, the Senate, and the Governor’s office agree to maintain regular weekday business hours of 8:00 a.m. to 5:00 p.m. During these hours, staff must be available to accept any documents, bills, or other communications from the Governor or the House or Senate. The parties agree to provide advance notice of any unusual circumstances relating to the delivery or return of bills. The delivery or return of bills is typically made within the regular business hours of the office unless other special arrangements are agreed to in advance.

    When the Governor signs or vetoes a bill or allows a bill to become law without his or her signature, the Governor’s office delivers a letter from the Governor to the house of origin as soon as possible on the same day the bill is signed or vetoed or allowed to become law or, if the bill is signed or vetoed after business hours, the Governor’s office will deliver the letter the next morning that the house of origin is in session.

    Computing 10-day and 30-day periods. In counting the 10-day period for action on a bill, the day that delivery is actually made is not counted. For example, if a bill is delivered to the Governor on a Monday, the first day of thecounting days 10-day clock for the Governor’s action is Tuesday. Since Saturdays, Sundays, and holidays are considered legislative days, they are counted in calculating the 10-day period.

    However, if the 10th day falls on a Saturday, Sunday, or holiday, the day on which the bill must be returned to the General Assembly is extended to the next day that is not a Saturday, Sunday, or holiday. For example, if the House or Senate delivered a bill on Wednesday, February 11, 2015, the 10th day would fall on Saturday, February 21, 2015. The Governor need not return the bill on Saturday or Sunday because the 10th day would be extended to Monday, February 23, 2015. If the Governor did not sign or veto the bill, it would become law at 12:01 a.m. on Tuesday, February 24, 2015. Similarly, if the House or Senate delivers a bill on a Wednesday and the 10th day is extended from Saturday to a Monday, but the Monday is also a holiday, the return date will be further extended to Tuesday.

    This seems pretty straight forward, but if the General Assembly or the house to which a bill is to be returned is in session and conducting business on a Saturday, Sunday, or holiday, and the 10th day falls on that day (for example, President’s Day), then the Governor must return the bill on that day. For example, if the Senate delivers a bill on Wednesday, March 4, 2015, the 10th day is Saturday, March 14, 2015. If the House was adjourned for the weekend but the Senate was in session and conducting business on Saturday, March 14, 2015, the Senate bill must be returned by that date. If a bill is delivered on Wednesday, February 4, 2015, the 10th day is Saturday, February 14, 2015. The 10th day would therefore extend to Monday, February 16, 2015. While February 16, 2015, is a holiday (Presidents’ Day), if the General Assembly or the house to which a bill is to be returned is in session on the Monday holiday, then the Governor must return the bill by that date.

    If the Governor does not sign or veto a bill but allows it to become law without his or her signature, it becomes law at 12:01 a.m. on the day following the end of the 10-day period. For example, a bill delivered to the Governor on Monday, February 2, 2015, would have to be acted on and returned to the house of introduction by the 10th day following delivery, Thursday, February 12, 2015. If no action is taken, it would become law without the Governor’s signature on the 11th day following delivery, Friday, February 13, 2015, at 12:01 a.m. A bill delivered to the Governor on Tuesday, February 3, 2015, would become law without the Governor’s signature on Saturday, February 14, 2015, at 12:01 a.m.

    If the General Assembly prevents the return of a bill during the 10-day period by adjourning sine die, the Governor has an additional 30 consecutive days after adjournment within which he or she may sign or veto a bill number 30and file it with his or her objections with the office of the Secretary of State. The Governor must also act within this 30-day period on all bills enacted during the session and delivered after adjournment. If the Governor neither signs nor vetoes a bill but files it with the Secretary of State within the 30-day period, then it becomes law without the Governor’s signature. The 30-day period begins to run on the day following the day that the General Assembly adjourns sine die. The same rules apply in counting the 30-day period as apply in counting the 10-day period. For example, if the House or Senate delivers a bill to the Governor on Monday, April 27, 2015, the Governor may elect to take no action before adjournment and have an additional 30 days to act. The 10th day is Thursday, May 7, 2015. If no action is taken before the expiration of the 30-day period on Friday, June 5, 2015, the bill will become law on Saturday, June 6, 2015, at 12:01 a.m.

    Important dates to know in April:

    • For purposes of the 2015 Legislative Session, the 10-day clock expires April 24, 2015, assuming that neither house of the General Assembly works the weekend of April 25 and 26.
    • All bills delivered to the Governor beginning Monday, April 27, 2015, are considered 30-day bills since the General Assembly must adjourn sine die, Wednesday, May 6, and the 10-day clock will expire Thursday, May 7.

  • April 15 is Tax Day….But It’s Also Gift Reporting Day! Are You Ready?

    by Jennifer Gilroy

    The deadline. We all know that April 15th is the last day to file tax returns, but did you remember that it’s also the day you have to file your quarterly gifts and honoraria disclosure statement with the Secretary of State’s office? Section 24-6-203, C.R.S., requires every incumbent in, or candidate elected to, public office (that includes legislators) to file a report with the Secretary of State’s office every January 15, April 15, July 15, and October 15 gift boxdisclosing all of the gifts and honoraria received in connection with his or her public service since the last reporting date.

    Well, actually, as an incumbent or newly elected official you don’t have to report everything you’ve received in connection with your public service. There are exceptions. But it’s really confusing to figure out just exactly what you must report. And then, to complicate matters further, the laws identifying the gifts you are permitted and not permitted to accept are completely separate and distinct from the law describing the gifts you must report each quarter. As tempting as it is, don’t allow yourself to be tripped up by thinking they are the same. They are not.

    The details. Let’s break it down. Once you’ve been sworn in to office, you must submit a report to the Secretary of State’s office each quarter (on their form) disclosing certain gifts and honoraria that you have received in connection with your public service. The law provides a list of items you must report and a list of items that you don’t have to report, but you may choose to report. Of course if, since the last reporting date, you have not received any gifts, honorarium payments, or other items that the statute requires you to disclose then you do not have to file a report at all.

     

    report

     

     

    • Honoraria – payments you’ve received for giving a speech or making an appearance or authoring a publication.
    • Travel and lodging – payments or reimbursements you’ve received for expenses you’ve incurred for travel  and lodging to attend a convention, fact-finding mission or trip, or other meeting that you are permitted to accept under Amendment 41, unless the payment or reimbursement of the expenses is made from public funds of a state or local government or from an association of public officials or public entities whose membership includes the reporting individual’s office or governmental entity (in which case you may report, but you are not required to). You must also report payments or reimbursements for those same types of travel and lodging expenses if they are paid for by a “joint governmental agency” to which the state pays dues, such as the National Conference of State Legislatures, the Council of State Governments, or the Energy Council.
    • Meals – a gift of a meal at a fund-raising event of a political party.

     

    report not

     

     

    • Campaign contributions – campaign contributions you’ve received that you’ve already reported under the Fair Campaign Practices Act.
    • Unsolicited tokens or awards – unsolicited items of trivial value and unsolicited tokens or awards of appreciation.
    • Travel and lodging – As stated earlier, if a state or local government or an association of public officials or public entities whose membership includes the reporting individual’s office or governmental entity pays, or reimburses you, for expenses you’ve incurred for travel and lodging to attend a convention, fact-finding mission or trip, or other meeting that you are permitted to accept under Amendment 41, you do not have to report the payment or reimbursement.
    • Salary – payment of salary from employment, including other government employment, that is in addition to what you earn as a member of the General Assembly (although you should be disclosing the source(s) of that income on another report you must file with the Secretary of State’s office pursuant to §24-6-202, C.R.S.
    • Amendment-41-permitted gifts – any other gifts or things of value that you are permitted to solicit, accept, or receive pursuant to Amendment 41.

     

    The crime. Clear as mud? It is a confusing area of law. And yet any person who willfully files a false or incomplete gifts and honoraria report is guilty of a misdemeanor and, if convicted, may be subject to a fine of up to $1,000. So you should take some time and be thoughtful about what you need to report. The same section of law requires those who provide you with an item that you must report to furnish you with a written statement of the dollar value of the item. But this doesn’t always happen, so don’t rely on it. Just because the donor of a gift didn’t give you a statement of value, it doesn’t mean you don’t have to report the item.

    The form and resources. The form you must use to report gifts and honoraria is available on the Secretary of State’s webpage. The Majority and Minority offices in both chambers also have hard copies of the form if you prefer.

    Questions about the gifts and honoraria reporting requirements should be directed to the Secretary of State’s office at (303) 894-2200. And you may always contact the OLLS with any questions you have related to gifts and honoraria reporting or consult our indispensable “Ethics Flash Card”, on the back of which you’ll find a summary of the reporting requirements entitled, “Do I Need to Report this Gift to the SOS?”.

    Don’t forget, the deadline is April 15th!

  • GAVEL Requirements: Thou Shalt Consider & Vote

    by Jery Payne

    Last week we discussed what a supermotion is and what a GAVEL motion is. If you missed it, you might want to check it out. It’s not necessary to read that article, but it may be helpful.

    Whether by supermotion or not, GAVEL allows a bill to skip ahead in the normal process. But depending on how this is done, it can mean the process fails to meet a constitutional requirement.

    Ironically, the constitutional requirement also comes from the GAVEL amendments to the Colorado Constitution, Section 20 of article V: “Every measure referred to a committee of reference of either house shall be considered by the committee upon its merits, and no rule of either house shall deny the opportunity for consideration and vote by a committee of reference….” This language was litigated in the case of Grossman v. Dean.

    The court of appeals held that this provision creates “a legally protected right for each legislator to have a committee of reference consider and vote on a bill on its merits.” So each bill must be both considered and voted on.

    committee hearing 4-2Now, I’ll bet some of you are thinking: “What does ‘considered’ mean?”

    Does it require a hearing? Probably, but that only begs the question of what has to happen in the hearing.

    Does it mean a vote? Yes, but in Grossman v. Dean, the court held that a mere vote isn’t enough. Section 20 of article V specifically mentions both (1) consideration and (2) a vote. So the court held that merely voting isn’t enough.

    Does it mean discussion, debate, or testimony? The committee probably has to do at least one of them, but it probably doesn’t have to do all three. Each would fulfill the consideration requirement, but any one is not necessary:

    [T]he intent of GAVEL in requiring “consideration” was that legislators be precluded from completely prohibiting interactive committee consideration of the merits of a bill, which interaction normally includes some level of discussion, debate, or testimony. … The amendment … leaves the General Assembly to determine, on a case-by-case basis, the level of discussion, debate, or testimony that is required.

    So GAVEL requires at least a bit of discussion, testimony, or debate. But the details are left to the General Assembly. House Rule 25 (j) (1) (E.2) delegates this discretion to the committee chair. So unless a statute or legislative rule says otherwise, the committee chair makes these decisions.

  • Is it a motion? Is it a COW motion? No! It’s a Supermotion!

    By Jery Payne

    Imagine you’re sitting down to hear testimony at a committee hearing. People are signing up to testify. The committee chair asks the sponsor to explain the bill. And another member says, “I move the bill to the committee of the whole.” The chair says the motion is in order, and you think, “No, it’s the wrong order. The motion is the last part of the hearing. And isn’t this bill supposed to go to Finance Committee? What’s going on?” Someone says, “It’s a supermotion!”

    Nope. Although this situation does not follow normal practice, this motion is not a supermotion.

    gavel 3-26In 1988, the people approved a group of amendments to the Colorado Constitution. These amendments are known as GAVEL, which stands for “give a vote to every legislator.” One of these amendments is Section 20 of Article V, “A motion that the committee report the measure favorably to the committee of the whole, with or without amendments, shall always be in order within appropriate deadlines.” Of course, moving a bill to the committee of the whole is normal practice. But GAVEL made it possible for a person to make this motion at any time without the possibility of the chair ruling the motion out of order. So if a bill hasn’t missed a deadline, it may be considered and moved to the committee of the whole. In other words, GAVEL was intended to stop a committee chair from refusing to schedule a bill. This is known as a pocket veto.

    A supermotion still refers a bill to the committee of the whole, but it’s made under House Rule 25 (j) (1) (G), which reads, “If a motion is made that a committee report a measure favorably to the committee of the whole … when such measure is not in the order of business …, then such measure shall be considered by the committeesupermotion upon its merits.” So a bill can be moved to the committee of the whole even when it’s not being heard as scheduled. This can mean either when the bill has been scheduled on the committee’s calendar but hasn’t been taken up yet or even when the bill hasn’t been so scheduled.

    Because of this overlap, confusion is common. In Grossman v. Dean, the appeals court cited both these sources of authority to define “supermotion”: “[A] motion becomes a supermotion under the GAVEL amendment and the House Rule when it is made out of order of the calendared business of the committee.” Neither GAVEL nor House Rule 25 actually use the word “supermotion,” the word itself is legislative slang. So you can’t look it up.

    In the example above, the motion is made when the bill has already been brought up by the chair according to the committee’s calendar. So the bill’s scheduled hearing has begun. It becomes a “supermotion” only when a legislator goes over the chair’s head. A supermotion bucks the calendar. This is what makes it super.

    Speaking of GAVEL and Grossman v. Dean, the court held that these types of motions can lead to a constitutional problem. GAVEL also has other requirements that need to be met. I’ll discuss them next week.