Colorado LegiSource

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

Author: olls

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.

Now, 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.

April 2, 2015
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.

In 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 committee 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.

March 26, 2015
When Does an Act Become a Law? It depends.
by Patti Dahlberg and Julie Pelegrin

Section 19 of article V of the state constitution specifies that an act takes effect “on the date stated in the act, or, if no date is stated in the act, then on its passage.” This seems simple enough. But there are other considerations and constitutional provisions that can affect when a bill eventually becomes law. To determine the date that a bill becomes law, you will need to read the last few sections of the bill to find the appropriate “clause.”

Effective date clauses:

It is common practice for a bill to state that it takes effect on a specific date, which may be several weeks or months after adjournment of the legislative session. This interval of time between the date that the bill is signed into law and the specified effective date allows state agencies, local governments, courts, and citizens to learn of the new law and make any required adjustments to comply with the new law. A typical effective date clause looks like this:

SECTION 20. Effective date. This act takes effect July 1, 2015.

Applicability clauses:

An applicability clause specifies that the new law will apply to certain events or transactions that occur on or after the effective date. An applicability clause can be used with either an effective date clause or a safety clause (see below). Applicability clauses are frequently used in criminal laws and other acts concerning contracts, contractual relationships, or court proceedings. The following are some common applicability sections:

SECTION 81. Effective date – applicability. This act takes effect November 1, 2015, and applies to offenses committed on or after said date.

Or

SECTION 25. Applicability. This act takes effect upon passage and applies to fiscal years beginning on or after July 1, 2015. (Note: This applicability clause must be accompanied by a safety clause.)

Safety clauses and 90-day Petition Clauses:

Section 19 of article V of the state constitution says that a bill takes effect upon passage if it doesn’t specify an effective date. But section 1 of article V of the state constitution says that the people reserve to themselves the power to approve or reject at the polls all or any portion of an act passed by the General Assembly – generally referred to as the “referendum power.” To refer an act to the ballot, a citizen must submit a petition to the Secretary of State within 90 days after the General Assembly adjourns the legislative session.

Section 1 of article V also says that the people cannot refer an act to the ballot if the act is “necessary for the immediate preservation of the public peace, health, or safety….” To clearly identify an act that is not subject to the referendum power, the General Assembly will include in the act a safety clause:

SECTION 17. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.

If an act includes a safety clause, section 11 of article IV of the state constitution determines the date of passage. This section requires that every bill be presented to the Governor for approval or veto. A bill becomes law when signed by the Governor, when the Governor fails to act on the bill within the time allowed, or, in the case of a vetoed bill, when the General Assembly overrides the Governor’s veto.

In the vast majority of cases involving a safety clause, the date of passage is the date of the Governor’s signature. For those bills that the Governor does not sign or veto, the date of passage is the day following the final date for the Governor to act on a bill presented to him or her. If the Governor vetoes a bill and the General Assembly overrides the veto, the date of passage is the date on which the second house passes the veto override motion.

The Colorado courts have held that the General Assembly is vested with the exclusive power to decide the appropriateness of using the safety clause. The question of including the safety clause in legislation is a matter of debate in the legislative process, and the courts will not review or question the General Assembly’s decision.

If the General Assembly decides a bill is not necessary for the immediate preservation of the public peace, health, or safety, it doesn’t make sense for it to pass without a specified effective date and take effect upon passage only to have its effectiveness questioned 90 days later when a citizen turns in a petition to put the act on the ballot. To avoid this, in each bill that does not have a safety clause, the General Assembly includes a “90-day petition” clause. This clause is really a specialized type of effective date clause. The standard 90-day petition clause reads as follows:

SECTION 33. Act subject to petition – effective date. This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 5, 2015, if adjournment sine die is on May 6, 2015); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2016 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor.

Bills usually default to the effective date specified in the 90-day petition clause, but they may have a different specified effective date, which must be later than 90 days after adjournment. In some cases, this date is many months into the future, sometimes even into the next year.

Fun Facts About Referendums:
- The General Assembly can refer an act or part of an act to the people by substituting a referendum clause in place of the safety clause or 90-day petition clause. The bill then becomes a “referred bill,” and it is not subject to the Governor’s veto power.
- The procedure by which the people can refer to themselves an act or part of an act passed by the General Assembly is often called a “recision referendum” or an “initiated referendum.”
- According to General Assembly records, the last act that was referred to the ballot by petition of the people was in 1932. The act increased the tax on oleomargarine – and it was affirmed by the voters.
- Appropriation acts for the support and maintenance of the departments of state and state institutions are not referable either by petition of the people or by an act of the General Assembly, even if the acts do not contain the safety clause.
March 20, 2015
Requesting an Interim Committee? All You Need is a Letter

(Reprinted with updates for the 2015 Session)

The process for requesting an interim study committee changed last year. Pursuant to section 2-3-303.3, C.R.S., a legislator can no longer create an interim committee by passing a bill or resolution. Instead, a legislator who thinks a group of his or her colleagues should study a particular issue during the interim must submit a formal letter to the Legislative Council for consideration and prioritization.

Requesting the creation of an interim study committee is a fairly simple process. A legislator starts by contacting either the Office of Legislative Legal Services or the Legislative Council Staff office to ask for a letter to formally request the creation of the interim study committee. Legislators will also soon have the ability to initiate the request through the iLegislate iPad application. The only information the legislator needs to provide when asking for the letter is the general topic that the interim committee will study. Both offices will assign staff to work with the legislator to develop the necessary details for the request and to prepare and finalize the letter. The legislator can also identify lobbyists or others who are authorized to work with staff in crafting the language of the letter.

The final letter must specify key details concerning the interim committee, such as:

• The scope of the policy issues the committee will examine;
• The number of legislators on the committee;
• How many times the committee will meet;
• Whether a task force is needed to assist the committee; and
• An estimate of the number of bills the interim committee may request to address the issues it studies.

The legislator who submits the letter request may ask other legislators who are in favor of creating the interim study committee to sign on as “supporters” of the request, similar to signing on as cosponsors of a bill or resolution. Unlike bills and resolutions, a letter requesting the creation of an interim study committee cannot have joint prime sponsors.

Once the letter is ready, the legislator must submit it to the Legislative Council for consideration by the Executive Committee. For the 2015 session, the deadline for submitting the letter is Friday, April 10, 2015. To help ensure adequate time to prepare the final letter for submission to the Executive Committee, a legislator must submit his or her request for a letter to the Office of Legislative Legal Services or the Legislative Council Staff office no later than Tuesday, April 7, 2015. The Legislative Leadership has stated no exceptions will be granted on this request deadline.

The Legislative Council will meet no later than Friday, April 24th this year to review and prioritize all of the interim study requests. Before that meeting, the Director of Research of the Legislative Council will review the 2015-16 legislative budget and report to the Executive Committee of the Legislative Council the number of interim committee meetings that are funded for the 2015 legislative interim. The Legislative Council will consider this information in deciding how many interim studies to prioritize. The President of the Senate, the Speaker of the House of Representatives, and the Minority Leaders of the Senate and the House will appoint the legislative members of the prioritized interim committees.

Using this process, most interim committees will be created by the end of the legislative session. However, after the General Assembly adjourns sine die, a legislator may submit to the Executive Committee a written request for an interim study committee. If the Executive Committee finds that the issue is the result of new or changed circumstances and the issue warrants study, the Executive Committee may create an additional interim committee or add the issue to the agenda of an existing interim committee.

For questions, please contact the Office of Legislative Legal Services at (303) 866-2045 or the Legislative Council Staff office at (303) 866-3521. A template of the letter used to request an interim study committee can be found here.

March 12, 2015
Marijuana Tax Revenues: Refund Madness!
By Sharon Eubanks

What’s up with the news reports saying the state has to refund state tax revenues collected on recreational marijuana? Didn’t voters already approve recreational marijuana and two new state taxes on recreational marijuana at two separate elections? It makes no sense that the state will have to refund tax revenues collected on recreational marijuana. Why are these refunds required? Well, here’s the scoop.

At the statewide election held in November of 2013, Proposition AA asked voters to approve imposing two new taxes on legalized recreational marijuana – a state excise tax and an additional state sales tax. Because this ballot question included tax increases, Article X, Section 20 of the Colorado Constitution (TABOR) required the state to include certain financial information in the Blue Book, which is the ballot information booklet that Legislative Council Staff prepares and provides to the public before an election.

TABOR requires the Blue Book to include “[f]or the first full fiscal year of each proposed district tax increase, district estimates for the maximum dollar amount of each increase and of district fiscal year spending without the increase.” (TABOR Section 20 (3)(b)(iii).) To comply with these requirements, the 2013 Blue Book analysis for Proposition AA included the following estimates for fiscal year 2014-15:
- State Spending Without the New Taxes — $12.08 billion
- State Revenue from the New Excise and Sales Taxes — $67 million
TABOR imposes consequences if the actual fiscal year spending and revenue amounts from an approved tax increase exceed the estimates provided to voters before the election. Specifically, TABOR Section 20 (3)(c) requires that, if either the resulting tax revenue or actual fiscal year spending exceeds the Blue Book estimates, then the voter-approved tax increase is reduced and the state must refund the revenues that exceed the estimates. The only way to avoid these impacts is “by later voter approval.” The General Assembly may obtain this later voter approval by referring a ballot question to prevent the tax rate reduction and to allow the state to keep all of its revenue.

If the recreational marijuana tax revenue in 2014-15 exceeds the Blue Book estimate of $67 million or if actual state fiscal year spending in 2014-15 exceeds the estimate of $12.08 billion, and the state has not obtained the later voter approval, then the state must:
- Reduce the rates of the recreational marijuana taxes; and
- Refund amounts that exceed the Blue Book estimates for fiscal year 2014-15 up to the total amount of the recreational marijuana tax revenues collected in that fiscal year.
Based on the Legislative Council Staff’s December 2014 Revenue Forecast, it is currently projected that the amount of recreational marijuana taxes collected in fiscal year 2014-15 will be $58.7 million, which is below the Blue Book estimate, and fiscal year spending for fiscal year 2014-15 will be $12.347.3 billion, which is above the Blue Book estimate. These estimates will likely change in subsequent revenue forecasts, but legislative staff expects that, by the end of fiscal year 2014-15, total recreational marijuana tax revenues will remain below the Blue Book estimate and actual fiscal year spending will still exceed the Blue Book estimate.

With total fiscal year spending for fiscal year 2014-15 likely to exceed the Blue Book estimate, the General Assembly may consider legislation during the 2015 session to:
- Refer a ballot question at the 2015 statewide election to prevent the recreational marijuana tax rate reductions and allow the state to keep all of its FY 2014-15 revenue above the Blue Book estimates; or
- Specify how to comply with TABOR in terms of how to reduce the rates of the recreational marijuana taxes, how to refund the marijuana tax revenues and to whom, and what revenues to use to accomplish this refund (e.g., recreational marijuana tax revenues or general fund revenues).
To date, a legislator has not introduced a bill dealing with these issues. But the 2015 session is only almost half over, so there is still time for the General Assembly to take up this issue. Stay tuned!
March 5, 2015
New and Improved Appropriation Clause Coming Soon to a Bill Near You

By Ed DeCecco and Sharon Eubanks

A critical part of legislation that creates a new program or changes an existing one is the appropriation clause. Through this clause, the General Assembly exercises its plenary power of the purse and authorizes an agency to spend state money from an identified source for a particular purpose, usually for a limited time. Recently, the trend has been to include more details in the clauses, but their basic format has essentially been the same for over a century. During that time, the clauses have been interpreted and applied without much controversy.

Yet, after an internal review, the staff of the Office of Legislative Legal Services and the Joint Budget Committee believed that the appropriation clauses could be improved. The existing clauses, although functional, are difficult to understand. Specifically, the legislative staff thought the appropriation clauses should be rewritten to remove unnecessary language, which could be codified; to increase legal accuracy; and to improve readability. The changes, however, are not intended to affect the meaning of the appropriation clauses or how the State Controller allows a department to spend its money.

To ensure that the new format would not change the status quo, legislative staff vetted the clauses with the Executive Branch – the State Controller’s Office, the Office of State Planning and Budgeting, and all of the departments. Their feedback was very positive, and they did not identify any serious obstacles to adopting the proposed format, though legislative staff did incorporate several changes based on the departments’ suggestions. The legislative staff then presented the proposed new format for appropriation clauses to the Joint Budget Committee for approval. The Committee approved the use of the new format beginning with the 2015 legislative session.

Here is a typical, simple appropriation clause written in the new format:

SECTION _. Appropriation. For the 2015-16 state fiscal year, $73,972 is appropriated to the department of public health and environment for use by the prevention services division. This appropriation is from the general fund and is based on an assumption that the division will require an additional 0.9 FTE. To implement this act, the division may use this appropriation for the suicide prevention program.

Rather than writing the appropriation clause as a single, lengthy sentence as was previously the case, this new format for an appropriation clause employs a three sentence structure. The first sentence describes the fiscal year, the amount of the appropriation, and the department, including the division that will use the appropriation. So, with a cursory review, a reader will know the essential information about the appropriation.

The second sentence identifies the source of the appropriation. If the source is a cash fund, the sentence will include the statutory citation for the fund, but that is unnecessary for the general fund. Also, rather than “appropriating” an FTE, it describes the associated FTE consistent with the definition of “FTE” in §24-75-112 (1) (d) (V), C.R.S., which applies to the Long Bill and complies with Colorado case law.

The third sentence specifically identifies how the department, or in this case the division, is permitted to use the appropriation. In many instances, this last sentence will include additional details about a program or a subdivision within the Long Bill so that the specified use corresponds to a Long Bill appropriation.

A key feature of the new format is what is excluded from the appropriation clause. Three phrases previously included in a clause – “In addition to any other appropriation”, “not otherwise appropriated”, and “or so much thereof as may be necessary” – are omitted from this new version. Instead these phrases are codified in Senate Bill 15-098, which the Governor signed into law on February 25, 2015. So the phrases will still apply to, but not clutter, each clause.

Legislative staff has created variations on this new standard format, including an appropriation clause that contains multiple purposes and a clause that directly syncs with an appropriation or series of appropriations made in the Long Bill. It is likely that a majority of appropriation clauses will be variations of the new three-sentence standard format or one of these other two clauses.

Without changing the meaning of appropriation clauses, legislative staff believes that appropriation clauses are now much easier to read. Hopefully you agree.

February 26, 2015
Not Even a Cup of Coffee: Gift Bans on Lobbyists Can Directly Affect Legislators!

by Jennifer Gilroy

You have been invited to a breakfast meeting at Panera’s at which a speaker will address the topic of student assessments, a topic of great interest to your constituents and one that you are interested in learning more about since you are aware of at least six bills introduced on the subject. As luck would have it, your calendar is actually open that morning.

Good learning topic: √ Check

Free time slot: √ Check

Amendment 41 compliant: √ Che…well…you stop to evaluate the invitation.

While you have not been asked to speak at this event so you’re not on the agenda, you believe you may still accept the invitation to the breakfast because you’ve been to Panera’s before and you’re pretty certain that you can keep your check under $53 so that you won’t be violating the constitution’s gift ban…Check! You tell your aide to RSVP and add it to your calendar.

Not so fast! Sure you can enjoy a nice breakfast and learn something useful all for under $53, but did you consider who is paying for your coffee and pastry at Panera’s? Yes, that’s another little wrinkle in Amendment 41 (Article XXIX of the Colorado Constitution) that can trip you up if you don’t ask the right questions. Most legislators and legislative staff know that they are subject to two gift bans under Amendment 41: One that prevents them from taking money from others, with certain expressed exceptions; and another that prevents them from accepting gifts or things of value exceeding a cumulative annual total of $53, with a few important exceptions. But if the “gift” (here a meal) has a value less than $53, what’s the problem? It’s not even necessary to look at the exceptions. Right? I mean, it’s just a cup of coffee after all.

Wrong. The problem in this case comes down to who’s paying for your breakfast. It may not have said so on the invitation, but if you asked, you would know that Glen McHandshake, lobbyist, is paying for the attendees’ meals. Why is that a problem? Because Amendment 41 actually establishes a third gift ban: Professional lobbyists cannot give (or arrange to give) a legislator or legislative staff (among other public officers and government employees) any gift or thing of value of any kind or nature…or amount! In fact, the constitution even says that a professional lobbyist cannot knowingly pay for any meal, beverage, or other item to be consumed, regardless of whether it’s offered in the course of the lobbyist’s business or in connection with a personal or social event. Not even a cup of coffee!

You probably noticed that this is a gift ban on the professional lobbyist, not on you as a member of the General Assembly. However, because professional lobbyists cannot give anything to a legislator or a legislative employee, it is recommended that you not accept anything from a professional lobbyist. That may seem like a very restrictive approach, but consider the posture of both Amendment 41 and the statutory Code of Ethics. The very first section of Amendment 41 reminds you that public officers, and legislators specifically, hold the respect and confidence of the people of the state of Colorado. This section further states that public officers should avoid conduct that is in violation of their public trust or that creates even a “justifiable impression” among members of the public that this trust is being violated.

In other words, even appearances can affect the public’s trust and confidence in the General Assembly and its members. The likely reason that the voters of Colorado decided that professional lobbyists should not give anything to legislators and other public officers and government employees was to avoid even the appearance that the lobbyist was buying favors or official action in exchange for the gift.

The statutory code of ethics also addresses this concept. It states right up front that the public trust is based on the confidence the electorate places in the integrity of the public officers and legislators it elects to office and in those who are otherwise employed as government employees. We all know that actions speak louder than words. Accepting a meal, or even a cup of coffee, from a professional lobbyist who is seeking your vote or other official action on a matter pending before the General Assembly may give the appearance to the public that the lobbyist is “buying,” or at least potentially attempting to influence, your vote or action. You can avoid that appearance altogether by attending the event and simply paying your own way.

The take-away message is this: While an invitation may look good in all respects, you need to take that extra step to ensure that you are in full compliance with the law. Always ask who is paying for the gift. But even if Mr. McHandshake is picking up the tab, it doesn’t mean you have to miss the event. Tell them you will attend, but you will pay for your own cup of coffee.

February 19, 2015
Bill Versions Mark the Path from Introduction to Final Passage

by Patti Dahlberg and Julie Pelegrin

In following legislation from introduction to the Governor’s desk, it’s important to know which version you’re working with. Once introduced, a bill may be amended at several stages of the process, and if you aren’t working with the most current version, you will be lost. Also, by paying attention to the stamps that accumulate on a bill as it moves through the legislative process, you will know when and where the bill’s been amended and how far it still has to go before becoming law.

The “version” of a bill indicates where it is in the legislative process. To become law, each bill must be passed, with exactly the same wording, by both chambers. The version of a bill (as indicated on the upper right side on the first page) changes as the bill progresses through each official stage: introduction, passage on second reading, and third reading final passage in the first house or “house of origin”; and introduction, second reading, and third reading final passage in the second house. Amendments that the House adopts are indicated using shaded text and amendments that the Senate adopts are indicated by double-underlined text.

The stamps (see examples to the right), starting in the lower left margin of the bill, are boxed tidbits of information indicating whether a chamber adopted amendments, at which stage of the process, and on what date. When the bill version names are replaced at each stage of the process, the stamps remain leaving a trail of history on the bill.

Bill versions reflect the stages of the legislative process:
(1) Introduced (or Printed) bill. This is the bill as introduced, before any amendments are made to it. This version of the bill is read into the record and assigned to a committee of reference for consideration in the house of origin.

(2) Preamended bill. This is an unofficial version of a bill that is released when a committee of reference amends the bill before referring it to another committee or to the committee of the whole. The preamended version shows how the bill reads with the adopted committee amendments. This amended bill version is “unofficial” because it has not yet been “officially” adopted by the full house of origin.

When a committee refers a bill to the Committee of the Whole the bill moves to the second reading stage of the legislative process. During second reading, the house of origin may adopt, amend, or reject the amendments made by the committee of reference. And the house of origin may adopt additional amendments before it finally passes or kills the bill.

(3) Engrossed bill. After the house of origin adopts the bill on second reading, the committee of reference report, as it passed on second reading, and any other amendments that passed on second reading are enrolled into the introduced version of the bill, and the new version is known as the “engrossed bill.” Note: If the house of origin does not amend the introduced version of a bill, the introduced version of the bill becomes the engrossed bill – same bill, but different version stamp.

(4) Reengrossed bill. Once the house of origin passes the bill on third and final reading, the bill goes through enrolling again if necessary to include any additional amendments adopted on third reading. After third reading, the bill becomes the “reengrossed bill” and it includes all of the amendments that the house of origin adopts. The reengrossed version of the bill is transmitted to the second house for introduction and committee assignment. The committee of reference in the second house works with the reengrossed version of the bill.

(5) Preamended bill. As in the first house, if the committee of reference in the second house adopts amendments to the reengrossed bill, the staff creates a preamended bill, which is an unofficial version of the bill.

At second reading, the second house considers all bills referred to it by the committees of reference; adopts, amends, or rejects the committee amendments; considers and possibly adopts additional amendments; and finally passes, or kills, each bill.

(6) Revised bill. After the second house adopts the bill on second reading, all of the amendments adopted on second reading are enrolled into the reengrossed version of the bill, and the new version is known as the “revised bill.” Note: If the second house does not amend the reengrossed version of the bill, the reengrossed version becomes the revised version of the bill.

(7) Rerevised bill. Once the second house passes the bill on third and final reading, the bill goes through enrolling again if necessary to include any additional amendments that the second house adopted on third reading. After third reading, the bill becomes the “rerevised bill,” and it includes all of the amendments that the second house adopts.

If the second house does not amend the bill, the bill is scheduled for enrollment and transmitted to the Governor for action. If the rerevised bill (final version in the second house) is different from the reengrossed bill (final version in the house of origin), it goes back to the house of origin. The house of origin must decide whether to concur in the second house’s amendments and readopt the bill, or reject the second house’s amendments and request a conference committee of the two houses to resolve the differences, or reject the second house’s amendments and adhere to its own reengrossed version of the bill. Once the two houses resolve the differences between them and adopt the same bill, the bill is scheduled for enrollment and transmitted to the Governor for action. If the houses cannot resolve their differences, the bill dies.

(8) Enrolled bill and Final Act. The final version of the bill as adopted by both houses is known as the “enrolled bill.” Both the Speaker of the House and the President of the Senate sign this version and it is transmitted to the Governor for action. The “final act” is the version that becomes law, either with or without the signature of Governor, unless the Governor vetoes it.

February 13, 2015
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.

February 5, 2015
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.

January 30, 2015