Colorado LegiSource

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

Author: olls

  • Limiting Legalese: The Importance of “Plain English” in the Colorado Revised Statutes

    By Gwynne Middleton

    Legislators and attorneys get a bad rap when it comes to legalese, that pejorative term relegated to needlessly convoluted jargon often found in legal documents. And rightfully so. Some of the worst offenders of overly complicated writing come from the legal profession. The Center for Plain Language even created an annual award called the WonderMark for the worst legal writing.

    But most legal writers don’t set out to confuse their readers. In a litigious society, these writers are tasked with including as much detail as possible in documents to avoid unintended interpretations and future legal debate. Unfortunately, even the best intentions sometimes leave the reader wishing the writer had gone another round at the editing table.

    In 1993, the Colorado General Assembly passed a law that requires drafters to write legislation that clearly and concisely communicates legislators’ intent. Known as the “plain language” law, section 2-2-801, C.R.S., expects bill drafters to avoid unnecessary jargon and to aim for “nontechnical language” that “in a clear and coherent manner uses words with common and everyday meaning which are understandable to the average reader.”

    Colorado legislative drafters apply this plain language law to each bill they draft. The Office of Legislative Legal Services’s drafting manual includes at least 37 guidelines and numerous examples for how to implement the plain language statute. Below are just a few of the guidelines drafters use to create clean legal writing for legislators’ bills.

    Use Active Voice.

    In the active voice, the subject and verb relationship is straightforward: the subject is a “be-er” or a “do-er,” and the verb moves the sentence along. In the passive voice, the subject of the sentence is neither a “do-er” nor a “be-er” but is acted upon by some other agent or by something unnamed. For example:

    Passive voice (actor absent): A notice shall be mailed to the parties within 15 days after issuance of an order.
    Active voice (actor present): The commission shall mail a notice to the parties within 15 days after issuance of an order.
    Passive voice: Prescribed forms may be furnished by the county clerk and recorder.
    Active voice: The county clerk and recorder may furnish prescribed forms.

    Avoid unnecessary jargon, including archaic terms and provisos.

    Legal writing has been around for a long time, and though legislators and drafters have updated language to reflect their changing audiences, certain archaic terms, such as “herein” and “heretofore,” as well as provisos (words before a sentence or clause that state an exception to the preceding sentence or clause) pop up in otherwise clear prose and often cloud the meaning of the sentence. For example:

    The Archaic Interloper: Any other incidental expenses for the trip not specified herein are the sole responsibility of each participant.
    Suggestion: Each participant is solely responsible for any other incidental trip expenses not specified in this section.
    The Pesky Proviso: An application for a parking permit shall be approved provided that the applicant has not been fined for more than ten parking violations.
    Suggestion: The county clerk must approve an application for a parking permit if (so long as) the applicant has not been convicted of more than ten parking violations.

    Avoid being verbose.

    Cutting archaic terms and provisos improves sentence clarity because including them in legal writing often indicates a legal writer’s propensity for being verbose. But seasoned legal writers know that cutting the “heretofore” and “provided that” legalese is just the beginning of concise writing. They’ll need to eliminate any unnecessary words and keep sentences short when possible if they want to help their audience understand and retain important information. For example:

    Verbose: In the case of Abigail v. Johnson (TC, 1988), the taxpayer was able to exclude from gross income embezzled funds that were repaid during the year the funds were embezzled but the taxpayer was not allowed to exclude embezzled funds to be repaid in a subsequent year.
    Concise: Abigail v. Johnson (TC, 1988) allowed the taxpayer to exclude embezzled funds repaid during the same year but not those repaid in a later year.
    Verbose: Louise can deduct the $10,000 for the cost of the pool at her new home as a medical expense.
    Concise: Louise can deduct the $10,000 cost of the new home’s pool as a medical expense.

    Ultimately, by rewording sentences to omit archaic terms and provisos and whittling away unnecessary words, drafters and legislators aim for precision in their language, curbing legalese to compose legislation that’s easier to interpret and implement.

  • Constitutional Rules for Legislation

    by Julie Pelegrin

    As has been discussed several times in LegiSource, the General Assembly’s authority to legislate is plenary – which means complete or absolute – except as specifically limited by the state constitution. Many of the constitutional restrictions on the power of the General Assembly apply to specific subjects like the ability to tax, requirements regarding the personnel system, funding for public education, and legalizing marijuana. However, there are several that apply to legislation, regardless of the subject.

    Art. V, Sec. 21: Single subject requirement
    The most well-known requirement that the constitution imposes on legislation is the single subject rule: A bill cannot contain more than one subject, and that subject must be clearly expressed in the bill title. This rule actually does not apply to a bill that only contains appropriations, for example, the annual general appropriations or “long” bill. If a bill contains items that are not included within the subject specified in the bill title, a court may hold that those items are unconstitutional, but the rest of the bill, so long as it does fit within the subject of the bill title, will not be unconstitutional. For more on bill titles, see Keeping a Bill Title Constitutional and Informative; and Bill Title Questions…and Answers.

    Art. V, Sec. 18: Each bill must have an enacting clause
    To be constitutional, each bill must begin with the phrase, “Be it enacted by the General Assembly of the State of Colorado.” As a matter of practice, if someone amends a bill to remove the enacting clause, the bill is considered dead.

    Art. V, Sec. 17: Laws only passed by bill; bill can’t change from its original purpose
    Only a bill can create or amend a law; a resolution, joint resolution, memorial, or joint memorial does not have the force of law and is not enforceable as law. The General Assembly cannot amend a bill so significantly that the bill no longer accomplishes the purpose it was written to accomplish when introduced, as that purpose is expressed in the bill title.

    Art. V, Sec. 19: Bills take effect by a particular date; bill cannot be introduced with only a title
    When the General Assembly passes a bill, it takes effect on the date specified in the bill. If the bill doesn’t specify a date, the bill takes effect when it is signed, or allowed to become law, by the Governor. A bill that doesn’t include an effective date will include a safety clause. For more on safety clauses and the power to refer measures to the ballot, see How would You Like Your Bill? Questions a Bill Sponsor Must Decide; and The Power of the People – Reservation of the Initiative and Referendum Powers. A legislator cannot introduce a bill that consists only of the bill title; a bill must also include text that sets forth the changes to existing law or makes appropriations.

    Art. V, Sec. 31: Revenue bills must start in the House
    A bill that raises revenue must be introduced first in the House. The Senate may amend the bill after it passes the House. Several years ago, the Attorney General issued an opinion interpreting this section as applying to bills that raise or reduce state general fund revenue.

    Art. V, Sec. 32: General appropriations bill cannot include substantive provisions
    The general appropriations bill can only include appropriations to pay the expenses of the executive, judicial, and legislative branches, state institutions, interest on the public debt, and public schools. It cannot include substantive changes to the statutes. All other appropriations must be made in separate bills, which may include both substantive and appropriation provisions, and which must comply with the single subject requirement.

    Art. V, Sec. 34: Appropriations to private institutions are prohibited
    The General Assembly cannot appropriate state moneys for any charitable, industrial, educational, or benevolent purpose to a person, corporation or community that the state does not control. And the General Assembly cannot appropriate moneys to a denominational or sectarian institution or association. It is important to note that the courts, in interpreting and applying this section, have developed a “public purpose” exception to this section. More on that in a later article.

  • ICYMI: A Refresher on the Legislative Rules

    With the end of the second full week of the legislative session, committees of reference are looking at calendars full of bills and both houses will soon be spending hours debating bills in committee of the whole and on third reading. While there’s still a little breathing room, we at LegiSource decided it would be helpful to provide a quick refresher on the legislative rules: in general, for committees of reference, for committee of the whole, and for third reading. This collection of articles from the LegiSource archives provides a relatively short primer on the rules and quick references to the rules that are most often invoked. Remember: You can’t play the game if you don’t know the rules!

    The Principles of Parliamentary Procedure – a Stepping Stone to Learning the Rules

    Obviously, there are many legislative rules, and it’s difficult to learn and remember all of them. You may want to start by learning the basic principles behind legislative procedure. Knowing the principles may help you understand and remember the purposes behind the rules, even if you can’t remember each specific rule. The introduction to Mason’s Manual sets forth these ten principles for group decision making:

    • The group must have the authority to take the action it is trying to take.
    • The group must meet to take action.
    • All members of the group must receive proper notice of the meeting.
    • A quorum must be present at the meeting.
    • There must be a question before the group that the group is authorized to decide.
    • There must be opportunity to debate the question.
    • The question must be decided by taking a vote.
    • For an action to be taken or a question decided, there must be a majority vote of the group.
    • There can be no fraud, trickery, or deception resulting in injury to any member.
    • To be valid, an action or decision by the group must not violate any applicable law or constitutional provision.

    Making Sense of Committee Rules

    As the committees of reference swing into action for the 2014 regular legislative session, some legislators may be struggling to raise their committee rule IQ. This article is a short overview of the more important committee procedural rules to help guide you through the coming hours of committee hearings.

    Second Reading and the Committee of the Whole

    The Merriam-Webster online dictionary defines “committee of the whole” as “the whole membership of a legislative house sitting as a committee and operating under informal rules.” But just what are those rules and how informal are they?

    Third Reading – Overview of Rules

    The legislator’s bill has passed the committee of reference, passed the Committee of the Whole on second reading, and is finally calendared for third reading and final passage. There are fewer third-reading rules to learn, but knowing these rules is crucial if the bill sponsor wants to ensure that the bill safely finishes its journey through the House or the Senate.

  • Are Temporary Legislative Rules of Procedure Really Temporary?

    by Sharon Eubanks

    On January 7, 2015, the Senate and the House of Representatives of the 70th Colorado General Assembly convened amid much pomp and circumstance. The day was filled with a multitude of activities in each chamber – reading the election results for the appropriate chamber as certified by the Secretary of State, calling the roll of members, administering the oath of office, electing a presiding officer, and, of course, delivering speeches. The chambers were filled with Representatives and Senators, their families and friends, legislative staff, and members of the media. It was a headline-making day full of anticipation and excitement.

    But both houses performed one activity on opening day that received little notice and is probably even less understood. This activity was adopting the legislative rules of the previous General Assembly – in this instance the 69th General Assembly that first convened in January 2013 – as the temporary legislative rules of the 70th General Assembly.

    Wait…what?

    It is the long-standing custom and practice of both the Senate and the House to adopt a simple resolution on the first day of session that makes the rules of each chamber of the previous General Assembly the temporary rules of that chamber for the newly convened General Assembly. This year, they accomplished this by passing House Resolution 15-1001 and Senate Resolution 15-001. Also, by adopting a joint resolution, the Senate and the House make the joint rules of the Senate and the House of the previous General Assembly the temporary joint rules of the Senate and the House of the newly convened General Assembly. This year, they passed Senate Joint Resolution 15-001.

    While you now know how the General Assembly adopts temporary legislative rules on opening day, you are probably still wondering – why did this legislative custom and practice develop? And when do the temporary rules become permanent?

    As to why, the answer is simple. Procedural rules adopted by one legislature are not binding on a subsequent legislature. In fact, the legislative rules adopted by the previous General Assembly automatically expire when a new General Assembly convenes. Once the 70th General Assembly convened on opening day in accordance with constitutional procedures, (see Colo. Const. Art. V, Secs. 2 & 7), neither the Senate nor the House had any legislatively adopted rules to govern their proceedings – no rules on the order of business, the preparation of a calendar and a journal, bill introduction deadlines, motions, voting, or committees. On the first day of the first legislative session, both chambers need to adopt rules for their proceedings as authorized by Colo.Const. Art. V, Sec. 12, and the easiest and quickest way to do so is to adopt the legislative rules of the previous General Assembly as the temporary rules of the new General Assembly.

    Sometimes a chamber will change the temporary rules it adopts by amending the rules in the same resolution used to adopt the temporary rules or in resolutions introduced later in the session. For example, it has long been the practice of the House to specify in the same resolution that adopts the temporary House rules that the temporary House rules may be amended by the affirmative vote of a majority of the members elected to the House until the House adopts permanent rules. This is a significant deviation from House Rule 47, which requires a 2/3rds vote of all House members to amend, suspend, or repeal any House rule.

    Likewise, the Senate resolution that adopts the temporary Senate rules provides that the temporary rules may be amended by the affirmative vote of a majority of the members elected to the Senate. Otherwise, Senate Rule 34 (a) requires a 2/3rds vote of all members elected to the Senate to amend or repeal a rule unless a Senator gives three days’ notice, in which case a vote of only the majority of members elected is required.

    So making the temporary legislative rules of a chamber permanent makes it more difficult to amend or repeal the rules of that chamber, which may help explain why the General Assembly rarely makes temporary legislative rules permanent. In fact, during the last fifty years, the General Assembly and its houses have almost always operated under temporary legislative rules for the entirety of each General Assembly. Which leaves us to ponder the true nature of a temporary legislative rule.

  • Constitution Controls the Start and End of Regular Legislative Sessions

    by Patti Dahlberg

    Why start the legislative session so early — January 7 — this year? Because it’s the law! The convening date for a legislative session, the length of the legislative session, how much time the Governor has to act on bills as they are passed, and other dates and time periods that come into play during a legislative session are determined by the Colorado Constitution.

    Some of the constitutional provisions governing the legislative session have been around since Colorado was a territory. And the citizens of Colorado have voted more provisions into the constitution since Colorado became a state 139 years ago. Either way, constitutional provisions are the ultimate law of this land.

    The constitutional provision that determines when the legislative session annually convenes is section 7 of art. V, and requires the General Assembly to meet in regular session at 10 a.m. “no later than the second Wednesday of January each year.” This year, the General Assembly is actually convening on the first Wednesday in January. ConstitutionThis is necessary because section 1 of art. IV requires the Governor and Lieutenant Governor to take office by the second Tuesday of January. But section 3 of article IV requires the General Assembly to declare the winner of the election for Governor and Lieutenant Governor or to decide who the winners are if the general election ends in a tie or is contested. To declare the winners, the General Assembly must be in session. So, each time a Governor is elected, the General Assembly must convene before the second Tuesday of January.

    Each regular legislative session can last no longer than 120 days, including Saturdays and Sundays and any other days the General Assembly may decide to take off (section 7 of art. V). A regular legislative session can last fewer than 120 days, which has happened as recently as 2008. Section 7 also allows the General Assembly to meet outside of a regular session when convened in a special session by the Governor or by written request of two-thirds of the members of each house. During a special session, the General Assembly can consider only the specific subjects listed in the Governor’s call or in the written request. For more information on special sessions, see “Frequently Asked Questions concerning Special Legislative Sessions”.

    Other constitutional provisions regarding the timing of legislative sessions include:

    • Section 15 of art. V: During a legislative session, neither the House nor the Senate may adjourn for more than three days without the consent of the other house.
    • Section 22 of art. V: Before a bill can become law, the votes on the bill must be taken on two separate days in each house.
    • Section 11 of art. IV: The Governor has 10 days during the legislative session in which to sign a bill, veto and return it, or allow the bill to become law without a signature. The Governor has 30 days to act on bills that the General Assembly sends to him or her for signature during the last 10 days of session.

  • The Publications Bill: A Little Bill with a Big Job

    by Nate Carr

    Each year a small, one-page bill works its way through the legislative process. It’s typically at the front of the legislative bill line, so to speak, and frequently has the honor of gracing the Governor’s desk before many of the other bills have even been heard in the first committee. This bill doesn’t trigger front-page headlines; it rarely, if ever, even makes the news. Why then, does this seemingly insignificant little bill get pushed through the legislative process so quickly?

    Well, this little bill has a big job – enacting the compilation of the state’s laws known as the Colorado Revised Statutes (C.R.S.). Each year the Committee on Legal Services, the legislative committee responsible for overseeing the publication and printing of the Colorado Revised Statutes, sponsors this bill. It is formally titled as a bill Concerning the enactment of Colorado Revised Statutes [Year] as the positive and statutory law of the state of Colorado; however, it is commonly referred to as the “publications bill.” The publications bill enacts the official printed version of the C.R.S. as the positive and statutory law of the State of Colorado. But why is it necessary to enact the C.R.S. annually?

    2012 Colorado Revised Statutes/Photo by Ashley Zimmerman
    2012 Colorado Revised Statutes/Photo by Ashley Zimmerman

    The answer to that question requires some background information. Once the General Assembly adopts a bill, the enrolling room and the Office of Legislative Legal Services (OLLS) prepare the bill in Act form for presentation to the Governor. Bills that the Governor signs, or that he does not veto, become law and are known as Acts. In the months following the adjournment of each legislative session, the OLLS staff, under the direction of the Revisor of Statutes, incorporates the newly enacted laws into the body of law published in the preceding year’s C.R.S. In addition, staff makes revision changes to correct nonsubstantive grammatical or punctuation errors, harmonizes conflicting bills, and adds voter-approved statutory changes. The Revisor also ensures that the C.R.S. are properly constructed, annotated, and indexed. The authority and guidelines that the Revisor follows to prepare the C.R.S. are located in articles 4 and 5 of title 2 of the Colorado Revised Statutes. Once the publications process is complete, the OLLS sends the data with the new, updated body of law to the state’s official contract printer who prints and distributes the updated sets of Colorado Revised Statutes.

    At the legislative session following the printing of the C.R.S., the General Assembly and the Governor move quickly to pass the publications bill. The bill does not change substantive law and may not be used as a vehicle to repeal or otherwise amend legislation enacted by a prior General Assembly or to amend a bill being considered during the same legislative session. Passage of the publications bill usually occurs within a few weeks after the start of the legislative session. Once enacted, the updated C.R.S., as printed by the state’s official contract printer, is deemed to have been properly collated, edited, revised, and constructed. The text of the newly updated C.R.S. becomes legal, irrefutable evidence of the state’s statutory law in a court of law. Without passage of the publications bill, provisions of the published C.R.S. are merely prima facie evidence of the statutory law that may be contradicted or rebutted by other evidence.

    Back to the question, why is it necessary to enact the C.R.S. annually? Enactment of the publications bill ensures that there is one, comprehensive body of primary statutory law for the state of Colorado on which courts and the public may rely. Without passage of the publications bill, all other bills would need to amend not only the last enacted version of the C.R.S., but also the Session Laws for each subsequent year in which a bill amends the same section of law. Eventually, it would become virtually impossible to know or understand what the statutory law of the state actually is. The publications bill may be a little bill, but it achieves a giant result!

  • After the Bills Pass: The Importance of Legislative Oversight

    by Patti Dahlberg

    “Legislative oversight” generally refers to a legislature’s review and evaluation of selected activities, services, and operations and the general performance of the executive branch of government. The legislature exercises Oversight definitionthis oversight to ensure that the executive branch administers new and existing programs efficiently, effectively, and in a manner consistent with legislative intent. Oversight has long been the focus of certain legislative statutory committees and has also become a required part of the hearings and work of the standing committees of reference.

    According to a National Conference of State Legislatures article on the Separation of Powers – Legislative Oversight:

      • “Legislative oversight takes many forms. Most often, legislative standing committees are responsible for continuous review of the work of the state agencies in their subject areas. Legislatures also have created special committees or staff agencies designed specifically to evaluate agency operation and performance. In addition, legislatures may review (and sometimes, veto) the rules and regulations developed by executive agencies to implement law.”

    In Colorado, ongoing legislative oversight of state agencies occurs through the following methods:

    Committee on Legal Services – review of administrative rules – §24-4-103, C.R.S.
    The legislature’s review of administrative rules is one way in which the General Assembly exercises legislative oversight of the executive branch. A “rule” is a formal written statement of law that a state agency adopts to carry out statutory policies and administer programs. The General Assembly’s role in the rule-making process is in authorizing an agency to make rules and then reviewing and, if necessary, invalidating rules that are not within the agency’s statutory authority or that conflict with state law. The Committee on Legal Services exercises some of the General Assembly’s rulemaking oversight responsibilities by tracking legislation that requires the adoption of rules and notifying sponsors when required or authorized rules have been adopted and by annually introducing a bill that extends rules that are within the agencies’ statutory authority and allows rules to expire that are outside the agencies’ authority or that conflict with law. For more information on the rule review function of the legislature see “Legislative Oversight of State Agency Rule-making”.

    Joint Budget Committee – fiscal oversight of state budget and finances – §2-3-201, C.R.S.
    The Joint Budget Committee (JBC) is charged with analyzing the management, operations, programs, and fiscal needs of the departments of state government as part of creating a balanced budget, which the state Constitution requires. The Governor reviews the executive-branch budget requests, sets priorities for funding, and sends the executive-branch budget request to the JBC for consideration. The JBC reviews the Governor’s proposed budget and holds public hearings with each state agency and institution to discuss priorities and answer questions. Based on the information gathered in these hearings and other information provided by the JBC staff, the JBC drafts the annual general appropriations bill, which is introduced during the second half of each legislative session.

    Legislative Audit Committee – review of agency performance – §2-3-101, C.R.S.
    The Legislative Audit Committee (LAC) assists in overseeing state government by reviewing the audits that the State Auditor performs of all departments, institutions, and agencies of state government and of other public Auditagencies, as well as reviewing other reports the State Auditor may prepare. In addition, the LAC reviews a number of annual performance audits required by §2-7-204, C.R.S., and conducted by the State Auditor’s office. According to Wikipedia, “an independent examination of a program, function, operation or the management systems and procedures of a governmental or non-profit entity to assess whether the entity is achieving economy, efficiency and effectiveness in the employment of available resources.” Based on recommendations from the State Auditor, the LAC may introduce legislation to create or clarify statutes identified in the audit reports.

    Legislative oversight of principal departments – §2-7-101, C.R.S.
    Section 2-7-101, C.R.S., better known as the SMART Act,* requires each legislative joint committee of reference to conduct hearings with assigned executive-branch departments regarding each department’s performance plans, regulatory agendas, budget requests, and associated legislative agendas – before each session. The goal of these hearings is for legislators to get a better sense of what is going on in the executive branch by asking questions, making sure that the departments are implementing laws as expected, and learning about departments’ legislative agendas before the legislative session starts. The appropriate joint committee of reference is notified when a department does not complete state auditor recommendations in a timely manner and when a department does not adopt legislatively required or authorized rules. The JBC will also use the departments’ performance plans to help prioritize departments’ requests for new funding. For more information regarding the SMART Act, see “So you think you’re so SMART?”

    Sunset Review Process – review of regulatory agencies and functions – §§2-3-1203 and 24-34-104, C.R.S.
    A number of entities, functions, boards, and advisory committees within state government are scheduled to terminate each year due to statutory repeal or “sunset” provisions. Under the sunset process, the Department of Regulatory Agencies (DORA) regularly reviews the functions of each state regulatory agency, division, or board, and each advisory committee, before its termination date, to determine whether the agency, division, board, or advisory committee should continue performing its functions with or without modifications. DORA issues a report to the General Assembly that a committee of reference reviews during the legislative session in a public hearing, which can include testimony from the program’s administrators and interested members of the public. The General Assembly must act by bill to continue the functions provided by an agency, division, board, or advisory committee. If the General Assembly does not act, the agency, division, or board goes into a one-year wind up period. If the General Assembly does not pass a bill to continue an advisory committee, the committee is repealed on the scheduled sunset date. For additional information regarding the sunset review process in Colorado see “The Sunset Process: Legislative Review of Regulatory Agencies and Functions” and “Sunset Reviews Conducted by Standing Committees”.

    * State Measurement for Accountable, Responsive, and Transparent (SMART) Government Act

  • The Resolution Might Be Televised: General Assembly Contemplates Remote Testimony

    by Kate Meyer

    Colorado, the nation’s eighth-largest state by land area, is justifiably renowned for its iconic landscapes, topographic variety, and diverse climate. However, with legislative sessions spanning treacherous winter and unpredictable springtime months, these quintessentially Coloradan features often conspire to impede the ability of the state’s citizens to travel to Denver to testify on legislation. Additionally, time, money, and accessibility concerns can deter residents of more distant locales. As a result, residents hailing from the more far-flung areas of the state can be underrepresented at legislative hearings. To address this inequity, there may soon be an alternative to the requirement to appear in-person in order to give testimony.

    Last session, the General Assembly passed House Bill 14-1303, which enables and directs the Executive Committee of the Legislative Council to promulgate policies that facilitate the receipt of public testimony from remote locations around Colorado. The bill is the General Assembly’s latest effort to adapt modern technology to the legislative process, but don’t expect to see citizens using FaceTime to testify on every bill when the legislature convenes this January. Like many of its forays into the new era of communication, the legislature will implement this bill cautiously and, likely, incrementally.

    What does HB14-1303 do? The bill directs the Executive Committee to “consider, recommend, and establish policies allowing legislative committees to take remote testimony from one or more centralized remote sites located around the state.” If the Executive Committee ultimately approves the use of remote testimony, at least one of those remote sites must be located on the Western Slope. And the Executive Committee is authorized specifically to contract with state institutions of higher education, which are typically well-known and well-equipped, that are willing to serve as those centralized remote sites. Further, the use of video conferencing can be implemented in phases.

    What doesn’t HB14-1303 do? Although HB14-1303 will allow some remote testimony, logistical circumstances, fiscal realities, and technological uncertainties require that the scope of the bill be somewhat limited. Therefore, HB14-1303 also put a number of crucial limitations on the way in which remote testimony will be accepted. Specifically, the bill does not:

    • Require every committee to take remote testimony, on every bill, at every hearing;
    • Erode the General Assembly’s ability to establish and enforce rules of procedure and decorum;
    • Allow citizens to provide remote testimony from any location they wish (say, their kitchen tables or Waikiki Beach); or
    • Require two-way video-conferencing capabilities.

    Other states allowing remote testimony. Two states currently permit remote public testimony. Like Colorado, these states’ capital cities are located in areas that often present geographic and meteorological challenges for many citizens.

    • Alaska’s Legislative Affairs Agency has set up 23 remote Legislative Information Offices throughout the state, which, in addition to providing general legislative information, allow members of the public to participate in committee hearings taking place in Juneau.
    • In 1991, the Nevada legislature appropriated moneys to set up a video conferencing link between committee rooms in the legislature and a room at the Cashman Field Convention Center in Las Vegas, the state’s most populous city.

    What are the next steps? Legislative Council Staff (LCS) is now in the process of evaluating potential vendors for the technology that will be involved with remote testimony. Three committee rooms are being adapted to allow for remote testimony, and LCS is developing related policies for the Executive Committee to consider.

    On September 5, 2014, the interim Water Resources Review Committee participated in a “trial run” of remote testimony. The committee met in the state Capitol, and received testimony from Hanna Holms at Mesa State University’s Water Center in Grand Junction. This “real-world” experience will undoubtedly inform the policies being developed.

    The General Assembly will be checking in on committees’ use of remote testimony through the next two sessions. HB14-1303 requires the director of research at LCS, before August 1, 2016, to submit to the members of the General Assembly a report detailing the extent to which remote testimony has been utilized, the costs associated with offering remote testimony, and any technical or other issues that arose in connection with remote testimony.

  • Spooky Oddities at the State Capitol

    by Ashley Zimmerman

    As with many old, historical buildings, a number of ghost stories haunt the Colorado state capitol. Officially, there are no ghosts to be found in the building. However, those of us who have smelled an odd perfume, seen an odd figure, or heard an odd hoof beat know better. In honor of Halloween, we present to you a few of the most notable ghosts that unofficially haunt our halls.

    The Bloody Espinosas

    Perhaps the most well-known story of the capitol, this tale begins in 1863. Back then, the Colorado settlement was four years young, and the Gold Rush had brought a curious crowd to the territory. Denver was less a big city and more a town full of tents and temporary occupants hoping to make it rich. A few smaller mining towns were popping up throughout the state as gold was discovered, including Breckenridge, Colorado City, and Black Hawk, but these developments upset many people who already lived in the area. Two brothers from New Mexico, Felipe and Vivian Espinosa, were especially irate at the pioneers moving onto their land in the San Luis Valley and, for the better part of 1863, were intent on killing as many of the new residents as they could. Numbers of the murdered vary, but it’s believed they killed between a dozen and 30 people in just a few months.

    Accounts of how the brothers’ bloody careers ended differ, but eventually the brothers were killed, likely by a volunteer group of citizens from Park County. Their heads were brought to the capitol to collect the bounty set by the governor, but the governor refused to pay and no one knew what to do with the heads. They were first kept in the Treasurer’s Office in the capitol building but were later moved to the sub-basement beneath the capitol. Eventually, the heads were destroyed in the furnace.

    Since then, it’s been said that the heads of the Espinosa brothers can be seen floating through the building after dark. And if you’ve ever heard the sound of horses galloping up and down the main staircase, well, that’s just the Bloody Espinosas…looking for their heads!

    Ghost on stairs

    The Victorian Apparition

    On the third floor of the capitol building, rumor has it that you can see the ghostly visage of a woman wearing Victorian-era garments. She appears out of a mist near the entrance to the senate chambers and then floats off to either side of the chamber before disappearing.

    The Woman in a Long Dress

    A female spirit, appearing in a long, turn-of-the-century dress, is said to wander the steam tunnels beneath the capitol, as well as the capitol building and all the buildings connected to the tunnels in the Capitol Hill area. She’s been seen reading over the shoulders of employees in each of the buildings.

    The Mysterious Tunnels

    Certainly the steam tunnels under the capitol building lend themselves to spooky stories and an overall heightened awareness. In addition to The Woman in a Long Dress, there have been reports of odd cold spells, during which keys, ID badges, and other items are pulled away from the body of the owner and lifted into the air by an unseen force.

    General Spookiness

    While the above stories illustrate a few of the known spirits, there are still a few more spooky happenings in the capitol building that don’t have a known explanation:Ghosts-of-riddle-house

    • In the early hours before business gets going, and in the late hours well after business is done for the day, it’s said that the temperature in many areas of the capitol suddenly drops and a vintage, rose-scented perfume permeates the air before disappearing without a trace as the temperature returns to normal.
    • When business is done for the day, voices, conversations, and footsteps can be heard in and around empty meeting rooms and offices.

    For more information on the eerie and unexplained happenings under the Dome, visit Colorado Central’s two-part story on the Espinosa brothers here and here, as well as the New York Times archival report on the brothers, and “Colorado Legends and Lore: The Phantom Fiddler, Snow Snakes, and Other Tales” by Stephanie Waters.

  • Ex Post Facto Laws, Effective Dates, and Legislative Time Travel

    by Richard Sweetman and Rebecca Hausmann

    You want your bill to take effect on January 1, 2015, but your bill drafter says it’s not possible. Why not?

    Because the General Assembly convenes on January 7, 2015, the earliest any bill can be introduced is January 7, 2015. The earliest it could pass both houses of the General Assembly is January 9, 2015. And you can’t make a law travel back in time to apply to dates that occurred before the law was even passed!

    Or can you?

    Retroactivity and Retrospectivity

    Section 11 of article II of the Colorado constitution provides that “No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.” [emphasis added]

    However, in Colorado, the courts observe a distinction between retroactive application of law and retrospective application of law. Although the retroactive application of a statute is generally disfavored by the common law and by section 2-4-202, C.R.S., (“A statute is presumed to be prospective in its operation.”), the retroactive application of a civil statute is not necessarily unconstitutional. Retroactively applied civil legislation is unconstitutional only if it is also retrospectively applied. Ficarra v. Dep’t of Regulatory Agencies, Div. of Ins., 849 P.2d 6, 11 (Colo. 1993).

    A statute is retrospective if it takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. In re Estate of DeWitt, 54 P.3d 849, 854 (Colo. 2002).

    The Colorado Supreme Court’s retrospectivity analysis consists of two inquiries. First, the court will consider the “vested right” prong of retrospectivity. Second, if a vested right is not implicated, the court will consider the “new obligation, new duty, or new disability” prong of retrospectivity.

    A couple of recent court cases provide examples of how a bill’s effective date can affect a court’s retrospectivity analysis.

    Impermissible Retroactivity

    On March 27, 2006, the General Assembly enacted the “Colorado Clean Indoor Air Act,” which imposes restrictions on smoking in public places. The Act had an effective date of July 1, 2006. In Coalition for Equal Rights, Inc. v. Owens, 458 F. Supp. 2d 1251, 2006 U.S. Dist. LEXIS 77914 (D. Colo. 2006), the U.S. District court in Denver ruled that section 25-14-204 (2), C.R.S., was impermissible ex post facto legislation because a cigar-tobacco bar owner who legally expanded a business between December 31, 2005, and July 1, 2006, would become subject to penalties as of July 1, 2006, for the pre-enactment expansion. Section 25-14-204 (2), C.R.S., states in part:

    A cigar-tobacco bar shall not expand its size or change its location from the size and location in which it existed as of December 31, 2005.

    The court stated that “on its face, this language criminalizes activity, expansion of a cigar-tobacco bar, that occurred prior to enactment, when it was still legal.”

    Permissible Retroactivity

    But, the fact that a law applies to a past action does not, in and of itself, make it impermissibly retroactive. In Meyerstein v. City of Aspen, 282 P.3d 456 (Colo. App. 2011), the Colorado Court of Appeals addressed the question of retroactive applicability. Section 38-12-301, C.R.S., which prohibits rent control by counties and municipalities, was amended effective September 1, 2010, by HB10-1017. The “effective date – applicability clause” of the act indicated that the changes applied to agreements entered into “before, on, or after September 1, 2010.” [emphasis added]

    Before the 2010 amendment, section 38-12-301, C.R.S., simply stated:

    38-12-301. Control of rents by counties and municipalities prohibited – legislative declaration. The general assembly finds and declares that the imposition of rent control on private residential housing units is a matter of statewide concern; therefore, no county or municipality may enact any ordinance or resolution which would control rents on private residential property.

    The 2010 amendment clarified the restriction in that section by adding subsection (2):

    (2) For purposes of subsection (1) of this section, an ordinance or resolution that would control rent on either private residential property or a private residential housing unit shall not include:

    (a) A voluntary agreement between a county or municipality and a permit applicant or property owner to limit rent on the property or unit or that is otherwise designed to provide affordable housing stock; or

    (b) The placement on the title to the unit of a deed restriction that limits rent on the property or unit or that is otherwise designed to provide affordable housing stock pursuant to a voluntary agreement between a county or municipality and a permit applicant or property owner to place the deed restriction on the title.

    The Meyerstein court found that the 2010 changes to section 38-12-301, C.R.S., were meant to clarify the existing law, not change it, and therefore the retroactive application of the new language under the circumstances of the case did not violate the constitutional prohibition against retrospective legislation.

    To reach its decision, the court first noted the General Assembly’s explicitly stated intent that the new subsection (2) be applied retroactively. Meyerstein, at 465. The court also noted that in a prior case (Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30 (Colo. 2000)) the Colorado Supreme Court had concluded that the unamended statute was ambiguous — particularly as to whether the statute could be read to extend beyond just ordinances and resolutions to deed restrictions. Id. Finally, the court considered the legislative history of the 2010 bill, especially comments by the sponsor, Senator Betty Boyd, indicating that the bill was intended to “clarify” the scope of the existing provision. Id., at 466.

    Next, applying the two-prong approach described in DeWitt, the court stated that the statutory change did not deprive the plaintiff of any vested right and did not produce any change in the plaintiff’s position. Id., at 466. The plaintiff had purchased property that was subject to a deed restriction limiting tenants and rents, and application of the new rent control statute did not change that fact. Id., at 466.

    Legislative Time Travel

    So in the rules of the legislative universe, it is technically possible to make a law travel back in time to apply to dates and actions that occurred before the law was passed. That is, it is possible for an enacted law to apply retroactively. However, for this to happen, the General Assembly must be absolutely clear about its intent, and the retroactive application of the law must pass strict judicial tests to ensure its constitutionality.