Colorado LegiSource

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

Author: olls

  • Legislative Council Set to Review 2014 Ballot Analyses

    By Julie Pelegrin and Cathy Eslinger

    LegiSource acknowledges and thanks the Legislative Council Staff for their significant input on this article.

    The Legislative Council Committee will meet Wednesday, Sept. 3, to review analyses of the four measures that the secretary of state has certified to the 2014 general election ballot. Two of the measures would amend the constitution: Amendment 67 would define “person” and “child” for purposes of the Colorado criminal code and wrongful death statutes; and Amendment 68 would allow casino gambling at horse race tracks. The other two measures would amend the Colorado Revised Statutes: Proposition 104 would specify that local school board meetings concerning collective bargaining negotiations or employment negotiations must be open to the public; and Proposition 105 would require the labeling of genetically modified food, beginning July 1, 2016.

    As required by the state constitution and by statute the Legislative Council Staff (LCS) has been working for weeks to prepare the analyses to help the public understand the purpose and effect of each measure. Following the Legislative Council’s review, the LCS will mail the analyses, printed in the familiar “blue book,” to each registered-voter household in the state. bluebook Also, the LCS maintains a blue book website – www.coloradobluebook.com – that includes drafts of the analyses and the text of each measure.

    The LCS prepares a blue book before each general election for which initiated or referred constitutional or statutory amendments or questions are certified to the ballot. The analysis of each measure includes a summary of the measure, the major arguments for and against the measure, and a brief fiscal assessment of the measure. The analysis may also include other information that can help voters understand the measure’s purpose and effect.

    Each analysis typically goes through three drafts. But, depending on the complexity of the measure and the time available, some may require only two drafts. The LCS meets with proponents and opponents of the measure and writes the first draft using the information provided by them as well as information obtained through the LCS’s own research. The goal is to write an analysis that is concise, readable for a layperson, and factually correct.

    The LCS posts the draft analyses on the blue book website, and any person may file written comments for staff to consider in preparing the second or third draft. The staff considers all comments and proposed amendments submitted by the established deadlines, but use discretion in changing the analysis. Some of the criteria for making proposed changes to the analysis include:
    • Avoiding slogan-type language that triggers a response but does not contribute to greater understanding of the measure;
    • Ensuring that statements are verifiable statements of fact rather than mere opinion, directly applicable to the measure, and not misleading;
    • Ensuring that the language specifically strengthens or clarifies the arguments and is not repetitive;
    • Maintaining the balance of the analysis between the opposing sides; and
    • Avoiding language that is more appropriate for the campaigns conducted by the opposing sides.

    As part of the analysis, the LCS also prepares a fiscal impact statement for each measure, taking into consideration fiscal impact information submitted by various state and local agencies, proponents and opponents, and other interested persons. The blue book will include a summary of each measure’s fiscal assessment. The full fiscal impact statement for each measure will be available on the blue book website. At a minimum, the summary must include:
    • An estimate of the measure’s effect on state and local government revenues, expenditures, taxes, and fiscal liabilities;
    • An estimate of the amount of any state and local government recurring expenditures or fiscal liabilities; and
    • For a measure that modifies the state tax laws, an estimate of the impact to the average taxpayer, if feasible.

    The LCS submits the final draft of each analysis to the Legislative Council Committee, which holds a public hearing to review the analyses. Anyone who is interested in testifying on the accuracy or fairness of an analysis may do so at this public hearing. The Legislative Council may change the language of an analysis upon a two-thirds affirmative vote of the council members. Before the public hearing, the LCS will post on the blue book website information for each analysis that includes the final draft, any amendments submitted to the final draft, a list of persons who had opportunity to comment on the last draft, and the text of the measure.

    Following the public hearing, the LCS will mail copies of the blue book to each registered-voter household in the state. This year, the scheduled mailing date is Oct. 3.

  • Statutory Construction: Singular v. Plural, Gender, and Time

    by Julie Pelegrin

    Editor’s Note: Last September, LegiSource began a series of articles focusing on statutory construction. So far, we have posted two articles: “Introduction to Statutory Construction – the Plain Meaning Rule”and “What Do You Mean by That? Definitions in the Statutes”. This week’s article is the third in the series.

    Even the most carefully drafted statute may have unnoticed and unintended ambiguities. When a statute refers to a single child, can it also apply to multiple children? If the statute only uses the pronoun “he” does it really only apply to men? If a statute gives a person seven days to file a notice, when do the seven days start, and do they include the weekend?Part 1 of article 4 of title 2

    Anticipating these issues, the General Assembly long ago adopted part 1 of article 4 of title 2, C.R.S.,  “construction of words and phrases.” This part has several sections that clarify statutory meaning. In this article, we’ll look at the rules for interpreting the use of singular and plural, the use of gender, and statements of time.

    Singular and plural: §2-4-102, C.R.S.

    The singular includes the plural, and the plural includes the singular.

    Generally, it’s good drafting practice to use the singular tense, e.g., referring to a child instead of children, a parent instead of parents, or a car or sign instead of cars and signs. But that doesn’t mean that the statute applies only to a single child, parent, car, or sign because the singular includes the plural. The Colorado Court of Appeals applied section 2-4-102, C.R.S., to hold that a separate adoption petition isn’t necessary for each of four children of the same deceased mother, even though the statute refers to preserving the anonymity of the adopted “child.” Another court found that a municipality that created conflicting messages between a traffic control signal and temporary stop signs waived its sovereign immunity, even though the statute referred to the waiver of immunity for failure to repair “a” traffic signal. A singular word includes the plural.

    Gender: §2-4-103, C.R.S.

    Every word importing the masculine gender only may extend to and be applied to females and things as well as males; every word importing the feminine gender only may extend to and be applied to males and things as well as females; and every word importing the neuter gender only may extend to and be applied to natural persons as well as things.

    So, if a statute uses only the pronoun “he”, it also applies to women; if it uses only “she”, it also applies to men; and if it uses only “it”, it also applies to people. This rule only applies to statutes that can factually apply to both genders and to people as well as things. But, it’s good drafting practice to avoid using a gender-specific noun or pronoun unless the statute is really intended to apply only to a single gender.

    Interpreting time: Sections 2-4-104 to 2-4-109, C.R.S.

    There are several statutory sections to help us calculate time in the statutes. A word in the present tense includes the future tense (see 2-4-104, C.R.S.). The word “week” means any seven consecutive days, apparently including weekends (see 2-4-105, C.R.S.). The word “month” means a calendar month (see 2-4-106, C.R.S.). An early case interprets this section as meaning the period beginning on one day of a month and continuing until the corresponding day of the next month, if there is a corresponding day. If there isn’t, then the calendar month ends on the last day of the succeeding month – i.e., a calendar month from May 15 expires on June 15, but a calendar month beginning on May 31 expires on June 30. And the word “year” means a calendar year (see 2-4-107, C.R.S.). Recently, the Colorado court of appeals applied this section and section 2-4-108, C.R.S., (discussed below) and held that

    a period of years ends on and includes the anniversary date in the concluding year, that is, the same month and day of the concluding year as the month and day from which the computation began.

    Section 2-4-108, C.R.S., provides a few more helpful rules for computing time. First, in counting a period of days, the first day doesn’t count and the last day does. For example, a bill that passes without a safety clause generally takes effect on the 91st day after the General Assembly adjourns sine die. This year, the General Assembly adjourned on May 7. The ninety-one day period started counting on May 8, so this year several bills took effect on August 6, the 91st day after May 7.

    But if the last day of a period falls on a Saturday, Sunday, or legal holiday, the deadline extends to include the next business day.

    If a time period is expressed as a number of months, the period ends on the same numerical day in the last month as the numerical day on which the period started in the first month, unless there aren’t that many days in the last month, in which case it ends on the last day of the last month. A six-month period that begins on March 2 ends on September 2, but a six-month period that begins on March 31 ends on September 30, unless the last day in the period is a weekend or a holiday. In that case, the period ends for both examples on the next business day.

    Finally, section 2-4-109, C.R.S., requires Colorado to operate on daylight savings time in accordance with federal law.

    So we’re all clear on how to interpret singular, plural, gender, and time in the statutes. In the next article in this series on interpreting the statutes, we’ll learn the number of persons required for a public body to act, how to interpret the word “to” in reference to multiple sections, and just what is an “introductory portion.”

  • Benefield et al. v. Colorado Republican Party: What Legislators Need To Know as Custodians of Public Records

    by Sharon Eubanks

    In 2006, the Colorado Republican Party (CRP) made a request under the Colorado Open Records Act (CORA), part 2 of article 72 of title 24, Colorado Revised Statutes, to several Democratic members of the House of Representatives (Representatives) asking for documents relating to an entity identified as Research & Democracy. At the time, the Representatives had in their possession responses from constituents in their respective districts to surveys that Research & Democracy sent out on the Representatives’ behalf.

    The survey asked a constituent to indicate what was the most important thing the Legislature accomplished during the 2005 session and what two topics should be priorities for legislators in the upcoming 2006 session. A constituent could check a box next to a choice of printed responses or handwrite a response. The survey also asked if the constituent would like to receive email updates from the legislator, and a space was provided for the constituent to write his or her email address. Constituents mailed completed responses back to their elected Representatives.

    CORA’s exemption for confidential constituent communications

    CORA provides that “all public records shall be open for inspection by any person at reasonable times” except for a number of specific exceptions. While public records generally include the correspondence of elected officials, they don’t include correspondence that is

    a communication from a constituent to an elected official that clearly implies by its nature or content that the constituent expects that it is confidential or that is communicated for the purpose of requesting that the elected official render assistance or information relating to a personal and private matter that is not publicly known affecting the constituent. (See 24-72-202 (6) (a) (II), C.R.S.)

    The Representatives initially claimed that all 1,584 constituent survey responses were confidential constituent communications and denied CRP the right to inspect them. CRP filed an action in Denver District Court seeking to force production of all the survey responses. The District Court held that most of the survey responses were public records subject to inspection under CORA and that the survey responses did not create an expectation of confidentiality on the part of constituents. The District Court did permit the Representatives to redact any information in the survey responses that constituents specifically requested be kept confidential.

    The Representatives appealed to the Colorado Court of Appeals, which reversed and directed the District Court to review each completed survey in camera using guidelines developed by the Court of Appeals to determine whether the constituent expected the survey response to be confidential. (See 2008 Colo. App. LEXIS 1708) Applying the guidelines, the District Court found that only survey responses that both included identifying information and disclosed personal information such as financial, health, or other circumstances were not public records and thus not subject to production. The Representatives were required to produce the rest of the survey responses even if they contained identifying information such as name, email address, mailing address, or telephone number. However, if a constituent requested identifying information be kept confidential, the Representatives redacted that information before making the survey response available. Ultimately, the Representatives produced 925 survey responses for inspection by CRP and withheld 659 survey responses as confidential constituent communications.

    As custodians of public records, legislators should realize that not all constituent communications are exempt from production under CORA. Only constituent communications that were made with an expectation of confidentiality may be withheld.

    Award of attorney fees and costs to prevailing applicant under CORA

    Once it was settled which constituent survey responses the Representatives must produce for inspection and which remained confidential, CRP filed a claim for its attorney fees and costs in this matter. The District Court denied CRP’s motion for attorney fees and costs after finding that: 1) The Representatives’ response to the CORA request was proper with respect to the confidential survey responses; and 2) after considering the relative success of each party in the litigation, CRP was not a “prevailing applicant” within the meaning of 24-72-204 (5), C.R.S. CRP appealed the District Court’s decision to the Court of Appeals.

    The Court of Appeals held that a party who obtains disclosure of even one improperly withheld public record after bringing a 24-72-204 (5), C.R.S., action is a prevailing applicant who must be awarded court costs and reasonable attorney fees. Because CRP obtained the right to inspect documents it sought from the Representatives, the Court of Appeals concluded that CRP was a prevailing applicant within the meaning of the statute. The Court of Appeals remanded the matter back to the District Court to determine the amount of costs and fees to award to CRP. (See 2013 Colo. App. LEXIS 821)

    The Representatives appealed to the Colorado Supreme Court. The Supreme Court determined that, when construed properly, the statutory provision mandates an award of costs and reasonable attorney fees in favor of any person who applies for and receives an order from the District Court requiring a custodian to permit inspection of a public record. While affirming the Court of Appeals’ decision, the Supreme Court did hold that, in awarding fees and costs to the “prevailing applicant”, it is necessary for the District Court to apportion the fees and costs among the applicant’s successful and unsuccessful efforts. (See 2014 Colo. LEXIS 521) The District Court has not yet taken this matter up again.

    As custodians of public records, legislators should realize that a CORA requestor will be entitled to at least a portion of his or her legal fees and costs incurred to obtain just one public record that is improperly withheld from inspection.

    If you are a member of the General Assembly and you receive an open records request, please contact the OLLS. For more information on what to do if you are “CORA’d”, please see the previous LegiSource article on CORA.

  • U.S. Supreme Court Spotlights Legality of False Statements in Election Laws

    by Bob Lackner

    Currently some 16 states, including Colorado, make it a crime to make false statements in political campaigns. In the recently decided case of Susan B. Anthony List v. Driehaus, No. 13-193 (U.S. June 16, 2014), the U.S. Supreme Court addressed the ground rules that govern when a person chooses to challenge the constitutionality of one of those laws. The court held that a group may have standing to claim the protections of the First Amendment before being convicted of the crime of issuing false statements during a political campaign if the group that challenges the law is accused of violating the law and is likely to be accused of violating the law again. (more…)

  • What Do You Mean By That? Definitions in the Statutes

    by Julie Pelegrin

    When debating legislation or reading statutes, a person will sometimes wonder what a specific word means as it’s used in the bill or the law. A word may be defined in several places and in different ways within the Colorado Revised Statutes – or it may not be defined at all. Following are some tips for figuring out whether the words in a bill or statute mean what you think they mean. (more…)

  • When Is Public Employee Speech Protected By the First Amendment: Lane v. Franks – The Latest from the U.S. Supreme Court

    by Anshu Agarwal and Bart Miller

    On June 19, 2014, the U.S. Supreme Court held unanimously that government employees are protected under the First Amendment if they provide truthful sworn testimony that is outside of their regular job responsibilities. (more…)

  • Self-Driving Cars May Drive Legislation

    by Jery Payne

    Imagine that you get in your car, start the engine, and say “Take me to work.” Then, you begin reading the latest news while drinking your coffee. Thirty minutes later, you look up because the car is parking.

    Does that sound nice? (more…)

  • Legislative Prayer: An Established Tradition that Does Not Establish Religion

    by Julie Pelegrin

    The Establishment Clause within the First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion…” Similarly, section 4 of article II of the Colorado Constitution states in part, “…Nor shall any preference be given by law to any religious denomination or mode of worship.” In many cases, the United States Supreme Court has interpreted the federal provision to require not only government neutrality as to religion, but also to require a separation between government and religion.

    But, each morning during the legislative session, the Speaker of the House and the President of the Senate ask everyone in their chambers to rise for the morning prayer. Over the years, leaders of a wide variety of religions have been invited to lead the prayer, including Catholics, Lutherans, Methodists, Baptists, Mennonites, Presbyterians, Nondenominational Christians, Jews, Hindus, Southern Utes, and Ute Mountain Utes. How can it be constitutional for the legislature to say a prayer every day before it begins working? (more…)

  • Colorado LegiSource is on hiatus

    The Colorado LegiSource will be taking a break for the next several weeks. We expect to resume weekly postings on July 10. However, if the Governor calls the General Assembly into special session before July 10, we will resume postings sooner. In the meantime, if you have questions you would like answered or issues you would like to see discussed on the Colorado LegiSource, please contact us using our feedback form.

  • The Second Regular Session of the Sixty-ninth General Assembly Moves into the History Books

    By Julie Pelegrin

    The second regular session of the Sixty-ninth General Assembly wrapped up Wednesday, April 7, 2014, adjourning sine die at 8:22 p.m. in the Senate and 10:26 p.m. in the House. Since January, the legislators have spent many hours holding stakeholder meetings, listening to testimony in committee, and debating and amending bills on a wide range of topics from regulation of recreational and medicinal marijuana to tax credits, to flood relief, to adoption, to license plates, to criminal laws, to financing public education, to water law. (more…)