Colorado LegiSource

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

Author: olls

  • Freedom of Speech for the New Legislator

    Freedom of Speech for the New Legislator

    by Esther van Mourik and Pierce Lively

    Editor’s note: This article was originally published on January 17, 2019.

    It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” – Supreme Court Justice Hugo Black

    He has the backbone of a chocolate éclair.” – President Theodore Roosevelt on President William McKinley.

    You’ve just been sworn in to serve as a legislative member of the Colorado General Assembly[1] and you are now a public official. Congratulations! If you would like to know your rights as a legislator when you’re being criticized by the public, when you’re making speeches, or when you’re being threatened, read on!

    It is a foundational principle that the success of a democracy is built on the back of free political discussion. This discussion is a fundamental right protected by the First Amendment of the United States Constitution and article II, section 10 of the Colorado Constitution. But freedom of speech is not absolute. For example, it does not protect a person who shouts “fire!” in a crowded theater and causes a panic. Over the years the judiciary has justified regulating speech when the restriction outweighs the value of the expression. So, where is the line drawn? In particular, when is speech directed toward, or made by, a legislator protected and when is it not?

    Speech directed toward a public official

    Let’s say that a critic has publicly said you are “ripping off taxpayers” by sponsoring a tax credit for businesses. Do you have a complaint against that critic for defamation? Probably not.

    Defamation is a catch-all term for civil, not criminal, damage claims stemming from false statements that hurt someone’s reputation.[2] Defamation laws are an important recourse for those who are harmed by false statements. However, defamation laws are in direct conflict with the constitutional right to free speech, and consequently, courts look at punishing that speech very carefully. This conflict is particularly acute in the case of public officials, such as legislators, because robust political debates and discussions are fundamental to our democratic system and should not be chilled.

    In New York Times v. Sullivan, the United States Supreme Court addressed this conflict by holding that the First Amendment’s right to free speech prohibits a “public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

    What does this mean for public officials, including legislators, in Colorado? A public official can only recover damages for a statement if he or she can prove that (1) a person published or otherwise communicated the statement to a third party, (2) the statement caused the public official actual damage, and (3) that when the person made the statement, he or she either knew it was false or had a reckless disregard as to whether it was false. This “actual malice” standard imposes a high burden on public officials in a defamation case.

    So, when a critic has publicly said you are “ripping off taxpayers” because you sponsored a tax credit for businesses, this may hurt your reputation, but it is probably not defamation. The critic is entitled to his or her opinion, and opinions are hard to prove true or false.

    Speech made by a legislator

    An “unrestricted debate of public issues” requires protecting not only a public official’s critics, but also protecting the public official. As regular readers of LegiSource will already know, this protection is achieved through “legislative immunity.”[3]

    Let’s say you make a statement during legislative debate that offends someone. Is your speech protected? Yes. The Colorado Constitution includes protections to ensure that you can do your job as a public official without interference or intimidation.

    Under Article V, section 16 of the Colorado Constitution, legislators are immune from civil lawsuits and state criminal prosecution for actions that fall within the “sphere of legitimate legislative activity.”[4] Although Colorado courts have not defined the phrase “sphere of legitimate legislative activity,” in Gravel v. United States, the United States Supreme Court held that activities that are “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House” are within the sphere.

    In general, these activities include conducting hearings, preparing and authorizing the publication of reports, delivering floor speeches, and voting but do not include meeting with or influencing executive branch or local government officials or political activities related to campaigning.

    When a constituent is offended by something you said during legislative debate about a particular bill, your speech is protected, and you are immune from any liability related to that speech.

    When speech turns criminal

    Legislative immunity protects legislators and the high burden in defamation cases protects critics of the government, but no one is protected while threatening others. Actions that constitute criminally threatening behavior include:

    • Attempting to influence legislators and other public servants through “deceit or by threat of violence or economic reprisal”;[5]
    • Threatening or using physical action to place another “in fear of imminent serious bodily injury”;[6]
    • A continuous course of conduct where one follows, approaches, contacts, places another under surveillance, or communicates with someone in a manner that causes that person to suffer serious emotional distress;[7] and
    • Harassment.[8]

    If you feel threatened in any way while in the capitol, call state patrol (303-866-3660). If you feel threatened outside of the capitol call local law enforcement. If you think the person threatening you away from the capitol may come to the capitol, please call state patrol.

    Final thoughts

    As you embark on your new careers as members of the General Assembly, it’s important to remember that open and robust discussion of public issues is a fundamental part of our democracy. Our laws strive to protect discussion both by critics of the government and the government itself. Critics of the government are protected by requiring public officials to clear a high bar before they succeed in defamation cases. Legislative immunity protects members of the government in relation to statements they make within “the sphere of legitimate legislative activity.” But expression that improperly influences, threatens, or harasses a person is illegal and unprotected. If you have any further questions about any of these issues, please contact the Office of Legislative Legal Services.

     

    [1] Or maybe you’re already a legislator and you just want a refresher!

    [2] If defamation is written, it is libel, and if it is spoken, it is slander.

    [3] See Legislative Ethics – Legislative Immunity and A Look at the Limits of Legislative Immunity.

    [4] For an in-depth discussion of how this doctrine applies to subpoenas, see To Testify or Not to Testify: Responding to a Subpoena.

    [5] Section 18-8-306, C.R.S.

    [6] Section 18-3-206, C.R.S.

    [7] Section 18-3-602, C.R.S.

    [8] Section 18-9-111, C.R.S.

  • What happens when multiple bills amend the same provision of law?

    What happens when multiple bills amend the same provision of law?

     by Bethanie Pack

    Editor’s note: This article was originally posted on March 15, 2019. It has been updated where appropriate.

    It’s very common for multiple bills to amend the same provision of law in a given session, because let’s face it, great minds think alike, and there are a lot of great minds in our state legislature. So, when this occurs, one of five things can happen:

    1. The bills are harmonized upon publishing;
    2. Provisions are renumbered;
    3. The bills are amended without need of a conflict letter from the Revisor of Statutes;
    4. The Revisor of Statutes issues a conflict letter to the bill sponsors of both bills notifying them of the conflict and that their drafters can provide guidance to the bill sponsor on how to address it; or
    5. As a last resort, one of the bills supersedes the other.

    So what in the world does all this mean? Let me explain.

    After a bill passes second reading in each house, the publications team (a team in the Office of Legislative Legal Services that works under the direction and supervision of the Revisor of Statutes) performs a database search against all other bills in the current legislative session to ensure no bills change the same provision of law in a conflicting manner.

    Harmonize

    If only Bill A and Bill C are adopted, then the publications team can harmonize the section upon publication, and there is no conflict. In other words, the two bills “play nice together.” The section would appear as:

    45-1-101. Residential watering. A homeowner may water the lawn for a maximum of one hour up to five times per week.

    The changes from both bills can be combined in this section and they can be harmonized.

    Renumber/Reletter

    Now, ignore Bills A, B, and C for a moment, and take as an example two bills that both add a subsection (2) to the current version of 45-1-101. If both bills pass, one of them will be renumbered to add a subsection (3).

     Conflict Letter

    Back to our original example.  If both Bill A and Bill B were to pass, they cannot be harmonized; there is a conflict. The section of law cannot state that a homeowner may water the lawn both three and five times per week. In this scenario, the Revisor of Statutes writes a conflict letter, as directed by Joint Rule 16, to give notice of conflicting provisions to the prime sponsors of the conflicting bills.

    These letters are sent to the prime sponsors and the conflict is noted in the transmittal letter sent to the opposite house after third reading in the first house. A copy of the letter is also stapled to the billback. The letter contains a statement about the conflict and a statement that the bill drafters know about the conflict and can provide guidance on how to address the issue.

    The publications team runs the conflict check after second reading in each house, which sometimes gives the drafter enough time to confer with the prime sponsor and draft a third reading amendment to fix the conflict. This quick action by the drafter would eliminate the need for a conflict letter before the bill is transmitted to the opposite house.

    Typical resolutions to conflicts by amendment include mirroring the language in both bills to make them harmonizable, making the conflicting provision in one bill contingent on the passage of the other bill so that both provisions don’t go into effect, or eliminating the conflicting provision or moving it to a different place in statute. But sometimes, none of these approaches will work because the bill sponsors don’t agree to the amendments that would harmonize the bills or because harmonizing the bills would defeat the purposes of the bills. In these situations, the legislators may decide to allow one bill to supersede the other.

    Supersede

    The goal of the publications team is to give effect to every bill. So, allowing one provision of law to supersede another is the last resort and done only if an amendment to fix the issue was not adopted. If two bills pass that cannot be harmonized, renumbered, or relettered, and they were not amended to “play nice together,” then one bill will supersede the other where the conflicting provision occurs. Which provision takes effect is typically based on the effective dates of the bills—the amendment with the later effective date prevails. Occasionally two conflicting bills will have the same effective date, in which case the provision that prevails is the one in the bill that the Governor signs last. In some cases, however, the bill with the earlier effective date will prevail because it repeals the provision. A bill that repeals a provision will supersede a bill that amends the same provision, even if the amending bill has a later effective date, because the repealed provision is gone by the time the amending provision takes effect, and it cannot be brought back to life to implement the amendment.

    For more information on effective dates, see “When Does an Act become a Law? It depends.”

  • On Ejusdem Generis & Squirrels

    by Jery Payne

    1.     Is Adam a Burglar?

    Adam worked at a truck shop. His duties included delivering clothes to the other workers’ lockers. Although it was possible to secure the lockers using a padlock, none of the workers actually used locks. The workers should have used the locks, however, because several workers noticed money missing from their work lockers. Suspecting theft, one of the workers installed a small video camera in the room. The camera recorded Adam looking through the lockers and taking items from them. This led to Adam’s arrest for burglary and theft.

    At trial, Adam was found guilty of the burglary charge. Here’s the law, section 18-4-204, C.R.S., forbidding burglary:

    A person commits third degree burglary if with intent to commit a crime he [sic] enters or breaks into any vault, safe, cash register, coin vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, or other apparatus or equipment whether or not coin operated.

    Adam appealed the guilty verdict, but the appeals court affirmed the conviction because he “entered or broke into what is tantamount to a vault.” The Colorado Supreme Court, however, reversed the appeals court because of ejusdem generis.

    Ejusdem generis is a Latin phrase that means “of the same kind or class.” This doctrine of statutory interpretation holds that, when a catchall phrase follows a list, the catchall phrase should be read to apply only to persons or things that are of the same kind as the items on the list. This means that the catchall phrase should not be read to cover everything that it says it covers. Instead, the catchall phrase should be limited to covering persons or things that are similar or in the same class as the things on the list.

    Ejusdem generis is actually a specific application of another rule of statutory interpretation: Every word in a statute must be given effect. When, for example, a statute applies to raspberries, strawberries, or other fruit, the words raspberries and strawberries are redundant with the word fruit. Therefore, reading fruit literally to mean all fruit means that the words raspberries and strawberries don’t do anything, and they don’t have any effect. So courts have decided that, to give every word meaning, we have to use the redundant items on the list to narrow the meaning of the catchall.

    Returning to Adam’s burglary case, the Colorado Supreme Court reasoned that all the items in the statutory list “are almost always used to contain money or valuables exclusively: vaults, safes, cash registers, coin vending machines, product dispensers, money depositories, safety deposit boxes, coin telephones, and coin boxes.” Therefore, the list doesn’t include equipment that holds mere property; the list includes only equipment that holds money and valuables. “Thus, whether any given container falls within the purview of the statute depends on whether the apparatus or equipment is merely a storage receptacle or is of the same kind or class as those items enumerated in the statute, that is, whether the container is designed for the safekeeping of money or valuables[.]” So, the Colorado Supreme Court held that Adam had not committed burglary.

    2.     Ejusdem Generis Is Squirrely.

    Imagine that you’re a court interpreting a statute that reads:

    To be imported into Colorado, cherries, tomatoes, cranberries, and other fruit must be inspected by the commissioner of agriculture.

    The statute has three fruits and the catchall of other fruit, so this statute should be read in light of ejusdem generis. The catchall word, fruit, presumably shouldn’t be read to cover all fruit, so you must decide what types of fruit aren’t covered. Here are some options:

    • The listed fruit, cherries, tomatoes, and cranberries, aren’t citrus, so no limes;
    • The listed fruit have skin that is normally eaten, so no pineapples;
    • The listed fruit are red, so no blueberries; or
    • The listed fruit are spherical, so no bananas.

    Which of these options is the right class? Which do you choose? Do you choose all of them?

    Wouldn’t it be better to avoid this guessing game?

    Sutherland’s Statutory Construction explains that ejusdem generis “expresses a meaningful insight about language usage that can be a relevant aid, if not a simple and certain exponent….”[1] When it passes a law, the General Assembly is trying to achieve a goal. Doesn’t this mean that the body wants as much certainty as possible?

    The concern isn’t whether the rule makes sense; the concern is that the rule is a wellspring of uncertainty.

    In Adam’s burglar case, the appeals court believed the statute applied to lockers, but the Colorado Supreme Court held that it didn’t. Regardless of what the General Assembly wanted, two courts came to opposite conclusions. Wouldn’t it be better to draft the statute so that both courts read the statute the same way?

    3.     Don’t Shroud the Law in A Mist; Do Away with The List!

    How should we improve the burglary statute? We can avoid the issue by not using a list:

    • If the intention is to make the burglary statute apply to lockers, then forgo the list. Write something like, “A person commits third degree burglary if, with intent to commit a crime, the person enters or breaks into a container used to store property.”
    • If the intention is, as the Colorado Supreme Court held, to apply only to a container that is used to store valuables, write something like, “A person commits third degree burglary if, with intent to commit a crime, the person enters or breaks into a container used to store money or valuable property.”

    The ambiguity is removed by redrafting the provision to get rid of the list.

    4.     Sometimes, A Belt and Suspenders Are Necessary.

    I imagine that every drafter at the Capitol has heard from a bill’s proponents that “We need a belt­-and-suspenders” provision. This is legislative shorthand for “we may need some redundancy.” In stakeholder negotiations, it is sometimes necessary to list an item or two in a statute to assuage the concerns of a nervous stakeholder.

    For example, a stakeholder may be worried that the word fruit won’t be read to include tomatoes and peppers. This is frequently what leads to phrases like tomatoes, peppers, and other fruit. Recall that ejusdem generis applies when a catchall follows a list, so the word fruit may be limited in some way to not apply to all fruit. Maybe a court will hold that the phrase tomatoes, peppers, and other fruit applies only to less-sweet fruit or, maybe, only to fruit that’s native to North America. If all fruit is meant to be covered, the phrase should be rewritten.

    This is when it makes sense to use the word including:

    To be imported into Colorado, fruit, including tomatoes and peppers, must be inspected by the commissioner of agriculture.

    This is better than tomatoes, peppers, and other fruit because courts usually hold that the words includes and including enlarge or extend rather than limit the general term. Here are some examples:

    One note of caution: it is possible to find cases where an including phrase has been held to be limiting out of a desire to give every word effect. An example is Shelby Cnty. State Bank v. Van Diest Supply Co. This case dealt with a lien on

    [A]ll inventory, including, but not limited to, agricultural chemicals, fertilizers, and fertilizer materials sold to Debtor ….”[Emphasis added.]

    In this case, the 7th circuit explained that:

    [I]t would be bizarre as a commercial matter to claim a lien in everything, and then to describe in detail only a smaller part of that whole. … But if all goods of any kind are to be included, why mention only a few? A court required to give “reasonable and effective meaning to all terms” must shy away from finding that a significant phrase (like the lengthy description of chemicals and fertilizers we have here) is nothing but surplusage.

    So the court did interpret the word including as limiting, and the judges didn’t care that the contract used the phrase but not limited to. Therefore, it is better to avoid using a list. But if that isn’t an option, then use an including phrase.

     

    [1] N. Singer, 2A Sutherland Statutory Construction § 47.07 (Seventh Edition)

  • Concerning bill titles, and, in connection therewith, explaining everything you need to know about the single-subject and original purpose rules.

    Concerning bill titles, and, in connection therewith, explaining everything you need to know about the single-subject and original purpose rules.

    by Megan McCall

    “And the coat rule is relaxed.” “The ayes have it and journal from the previous day is adopted.” “Does it fit under the bill title?” These are all frequently uttered phrases under the Dome, although the last might not be spoken with the same enthusiasm as the first two. The question of whether a matter fits under a bill title has undoubtedly come up a time or two for you during session and probably in a variety of contexts. It might have been a conversation with a bill drafter in the initial drafting of your bill, or perhaps the question has arisen in relation to evaluating an amendment request with a lobbyist or with another member of the General Assembly.

    Section 21 of article V of the Colorado Constitution states that “No bill, except general appropriations bills, shall be passed containing more than one subject, which shall be clearly expressed in its title….” Many of your counterparts in other states also have to comply with their state’s single-subject rule, although notably Congress does not. The Colorado courts have specifically identified the desire to prevent “log-rolling” as a core tenet to the single-subject rule, meaning the rule is intended to prevent several unrelated measures that may not pass individually be joined together in order to garner a majority of votes for the combined measure. Courts have also identified an intention to prevent public surprise as another primary purpose for the rule. A bill’s title should sufficiently put the public on notice as to the contents of the legislation.

    To comply with the nuances of the single-subject rule, bill titles may be drafted broadly or narrowly, and the compliance with the rule is a primary consideration for your drafter in the bill’s initial drafting stages. It is the custom of the OLLS to draft narrow or “tight” bill titles unless otherwise instructed by the bill’s sponsor. Sometimes a narrow bill title, however, is not possible based on the content a bill sponsor wants to cover in the bill. The Colorado Supreme Court consistently has held that generality in a title is not objectionable, and the Constitutional requirements are met if the matters contained in the bill are germane to the subject of the title. Thus a general, or a broad, bill title that describes the general subject matter of the bill should withstand scrutiny as long as the substance of the bill is germane to that title.

    A bill with a broad title may include what is called a “trailer,” which is a way of providing additional information to the reader as to its specific contents. This trailer will list and describe the varying components of the bill. Trailers can be lengthy and although they are in bold font just like the bill title, they are not the title of the bill for purposes of the single-subject analysis. If a bill has a trailer, the best way to keep track of the bill title is to remember that the title is everything after the first word “Concerning” and before the phrase “…, and, in connection therewith,”.

    Keeping a handle on the title of a bill is important as it is moving its way through the legislative process and amendments are offered to the bill, whether it is to your own bill or the bill of another member. This is in light of an ancillary constitutional provision in section 17 of article V that states that “No bill shall be so altered or amended on its passage through either house as to change its original purpose.” Meaning, just as the contents of an introduced bill must relate to the single-subject of the bill as evidenced in the title, so too must any amendments offered to the bill. Once a bill is introduced, the bill title cannot be amended to be made broader, as that would suggest the original purpose is being changed, or perhaps, that there is now more than one subject. A bill title can be amended to narrow its scope (although if narrowed, it can later be amended again to revert back to the original title). Bill trailers can always be amended, and frequently are, to add, revise, or remove specific descriptions of provisions impacted by the substance of amendments.

    The drafter of a bill may advise a member that an amendment request may raise a title issue, meaning the substance of the amendment may not fit under the bill’s title. An amendment that falls outside the bill’s title may be challenged, and the question is ultimately decided by the chair of the committee of reference or of the committee of the whole, depending on when the amendment is offered, and is in the chair’s sole discretion.

    Courts have jurisdiction to consider challenges to a bill’s compliance with the single-subject rule, but courts will generally defer to the judgment of the General Assembly when passing the bill. If the court finds a violation, only the portion of the bill that does not fit within the bill title will be held invalid. Additionally, the General Assembly passes a bill every regular session to enact the Colorado Revised Statutes, republished with all changes passed by bill in the preceding session, which has the effect of curing any title defects that may have existed within any bills passed in the prior session. Accordingly, single subjects are infrequently challenged.

    For more information on bill titles and the single-subject rule, see the OLLS memo concerning bill titles.

  • The OLLS Hereby Finds and Declares That You Should Read This Article

    The OLLS Hereby Finds and Declares That You Should Read This Article

    by Asia Merrill

    Drafters of statute have the difficult task of turning complicated ideas into plain and clear legislation. They work closely with legislators to translate the legislators’ ideas into laws that avoid the need for complex interpretation. The intent of the General Assembly must be as clear as possible so that the law can be administered or followed in the manner that the General Assembly intends. If a statute is interpreted by the Colorado courts, then between precedent and the statute itself, everyone should receive a just and consistent interpretation. Despite this, when several interpretations of a law do arise, lawyers and judges may turn to legislative declarations and statements of intent if they are included in the bill that enacted the law in dispute to help interpret the statute.

    Most of the time when legislators decide to include a legislative declaration or a legislative statement of intent, they choose legislative declarations. Per the Colorado Legislative Drafting Manual, legislative declarations are a formal announcement about a bill. They can establish a philosophical reason behind the new statute or deliver context or history regarding the fiscal or social issue driving the law. In general, they encapsulate the “why” and sometimes the “how” of the proposed legislation. Legislative declarations may also provide data and findings by the General Assembly to support the legislature’s claims and associated actions.

    Legislators may choose between nonstatutory or statutory legislative declarations. Both hold the same legal weight, but each serves a different organizational purpose. Usually, if a bill creates a new entire part or article or it only creates a new section, a statutory legislative declaration is the obvious choice. It’s a way to attach the declaration to the language itself in the statute books, where attorneys and citizencan most easily access it. If a drafter creates or amends multiple areas of statute, however, a nonstatutory legislative declaration most effectively gives context to the language without repeating the declaration in each new or amended section. Nonstatutory legislative declarations are only shown in the Session Laws, but they are cross-referenced in editor’s notes after a statute in the Colorado Revised Statutes.

    Legislators will also use a statement of legislative intent, which describes the intended purpose and desired effect of a bill. In general, legislative intents focus on what the outcome of the bill should be. Statements of intent should never be necessary to understand the desired outcome of the statute and should only supplement the bill. A relatively simple example of a statement of legislative intent is section 6-1-401, C.R.S., which establishes that the entire part is intended to:

     [Assure] that assistive technology [is] provided to persons with disabilities, is of quality, and is covered by adequate warranties to maintain their assistive technology in proper working condition; to assure availability of appropriate loaner replacement assistive technology while their own is being repaired; and to encourage manufacturers and dealers to cooperatively pool assistive technology resources for loaner purposes to assure availability without an undue burden.

    While short and sweet, the statement acts to announce the people the law is intended to serve and simply establishes the desired outcome.

    Legislators should use neither declarations nor statements of intent to simply garner support for a bill, although that certainly seems to happen from time to time. On the other hand, legislators should exercise caution when putting too much weight into a legislative declaration or a legislative statement of intent, lest the underlying statute may fail to address the problems they are trying to solve. It goes without saying that a legislator, and in turn, a drafter, should never use a legislative declaration to replace clear, concise statute.

  • The 1923 General Assembly: A Peep Into the Past

    The 1923 General Assembly: A Peep Into the Past

    by Sarah Meisch

    The Twenty-fourth Session of the Colorado General Assembly convened on January 3, 1923, with its members poised to pass cornerstone water and conservation legislation. This session would change how the Colorado River is allocated, address wildlife preservation, establish Armistice Day, and enhance care for children and the blind in Colorado.

    The Colorado River Compact
    One of the most important pieces of legislation passed in 1923 was the approval of the Colorado River Compact, which had been signed in Santa Fe, New Mexico, on November 24, 1922. Governor-appointed commissioners from Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming attended a conference in early November 1922 to determine how the river water should be allocated between the Colorado River Basin states. Many of the Basin states were newly concerned with securing their state’s water supply due to California’s robust population growth and a U.S. Supreme Court ruling from June 1922, which had declared the law of prior appropriation; this law expressed that, “whoever used the water first had first right of use in times of shortage … regardless of state lines.” The states had an urgent need to come to an equitable agreement to prevent California from requesting water other Basin states believed they had rights to instead.

    The Colorado River Compact was the first time in American history when more than three states came together to distribute the waters of a stream or river, and it became the bedrock for the “Law of the River” — the series of laws and contracts that regulate the use of the Colorado River. The agreement effectively ended navigation and commerce on the river and prioritized the value of the water for domestic and agricultural needs.

    The Compact was not binding until each of the Basin states approved it within their state legislatures and the U.S. Congress ratified it. The General Assembly in 1923 determined that the act was “necessary for the immediate preservation of public peace, health, and safety”, and the act was approved on April 2, 1923. Only six of the seven states needed to ratify the compact, and the Colorado River Compact officially took effect in 1929. Arizona would not ratify the agreement until 1944 due to the state’s concerns with the way the Compact allocated water to the Upper and Lower Basins rather than to each of the states directly.

    The Compact also raised the future question of Mexican ownership over areas of the Colorado River. Water allocations to Mexico were addressed in the Mexican Water Treaty of 1944.

    Colorado Game and Fish
    The General Assembly established several state game refuges in 1923 to regulate and prohibit the killing of certain protected game in Colorado. Violators of state game refuge laws would be guilty of a misdemeanor and punished by a fine of up to $100 and/or imprisonment for up to 60 days in the county jail. The restrictions seem to have been successful for at least one protected animal – the Abert’s Squirrel, which currently ranks as an animal of “least concern” for extinction.

    The 1923 legislation outlined particular limitations on game hunting, including a declaration that there would be no open season on partridges. A maximum of eight geese could be killed or found in a person’s possession in a single day, and only one deer and one elk could be killed by an individual in the entirety of the hunting season. The laws imposed by the 1923 General Assembly were an extension of Colorado’s wildlife protection legislation, which was initially passed to preserve game and fish in Colorado Territory in 1870.

    Armistice Day
    In 1923, the General Assembly changed “Liberty Day”, which was established in 1919, to “Armistice Day.” Legislation established Armistice Day on November 11 each year to commemorate the success of the Allies “against Germany and the survival of liberty and democracy at home and abroad.” Congress passed a resolution in 1926 for annual observance of the holiday, but by that time 27 state legislatures had already turned the day into a legal holiday. In 1938, Armistice Day became a national holiday, and in 1954 Armistice Day became “Veterans Day”.

    In 1968, a controversial new federal law changed the date of Veterans Day from the eleventh day of November to the fourth Monday in October to provide federal employees with a consistent three-day weekend. The first year of observance for the new date was 1971, but two states refused to switch the date, and veterans groups ardently opposed the change. In 1974, several newspaper editorials called for Congress to restore November 11 as the date of observance, and a few months later, 46 of the 50 states ignored the federal celebration in October, opting to switch back to the November 11 date or refusing to move the holiday altogether. In 1975, President Ford amended the Uniform Monday Holiday Act and changed Veterans Day back to November 11. Veterans Day has fallen on November 11 since 1978.

    Care for Neglected Children and the Blind
    Several acts were approved in 1923 to assist with the care of children, mothers, and the blind. The State Home for Dependent and Neglected Children received needed repairs, support, and maintenance that year, and an appropriation was made to construct a nursery cottage and remodel other institutional buildings. The Sheppard-Towner Act was enacted to promote the proper hygiene and welfare of mothers and infants.

    The General Assembly also allocated money to the Industrial Workshop for the Blind to support its operating and maintenance costs. Readers for the blind were paid for any services rendered to blind residents of Colorado who graduated from the Colorado School for Deaf and Blind and were employed within Colorado higher education. This program allowed the blind greater accessibility and opportunity across the state.

    Conclusion
    The 1923 General Assembly’s concern with conservation of our natural resources portended future discussions that continue to echo through the halls of the Colorado State Capitol and the U.S. Capitol today. The Colorado River Compact, the conservation of state refuges and wildlife, and the care of the disadvantaged were key legislative themes of the 1923 General Assembly, but the public’s interest in these issues remains just as keen in 2023.

     

    Citations

  • Amendment Clerks: Who Are They and What Do They Do?

    by Faith Marcovecchio

    It’s Friday morning, and the Committee of the Whole is hearing the second reading of bills. As you glance at the next bill up, you realize you need an amendment. Quick—to the amendment clerk!

    But what is the amendment clerk?

    You’ll find this helpful person at the front of each chamber, at a small desk to the left of the dais. The amendment clerk is a nonpartisan staff member who can, in consultation with the drafter of the bill, draft quick, nonsubstantial amendments for members during second or third readings.

    In Colorado, the amendment clerk is an employee of the Office of Legislative Legal Services and can be either an attorney or a legislative editor who has other drafting and editing responsibilities. In other states, the position is similarly filled by an attorney from the state legislature’s drafting office, but amendment clerking is that attorney’s primary responsibility during session, not something he or she does in addition to drafting bills. And then there are states where floor amendments are drafted exclusively by the bill’s drafter—there is no amendment clerk at all.

    The Office of Legislative Legal Services took over staffing the amendment clerk desk in 1999. Previous to that, part-time House and Senate staff filled this role. However, it made sense for year-round staffers who were already drafting and editing legislation to also sit in this hot seat because of their understanding of the Colorado Revised Statutes and the General Assembly’s procedures, drafting style, and software.

    The amendment clerk desk can be a hive of activity during debate of complex or controversial bills, with legislators and staff vying for the amendment clerk’s time to draft member amendments, contact bill drafters, prepare Committee of the Whole amendments, or contact an attorney to clarify rules. It may be necessary, at times, for the amendment clerk to prioritize requests from legislators. For example, during second reading, the amendment clerk must prepare second reading amendments before Committee of the Whole amendments.

    With so many people tugging at the amendment clerk’s sleeve, there are several things legislators can do to get what they need from the amendment clerk in a timely fashion. If at all possible, members should contact the drafter of bill before the bill is on second reading to request and discuss the amendment. When making an amendment request on the floor during debate, members should provide as much time as possible for the drafter of the bill and the amendment clerk to prepare the amendment to ensure that the language and law are accurate. If there isn’t enough time, members may need to request a short recess while the amendment is being prepared. Another option to allow for the proper time to draft floor amendments, especially when multiple floor amendments are in play, is to ask the Majority Leader to lay the bill over until later in the day’s calendar or a later date.

    Beyond drafting short amendments, amendment clerks can assist members in several other ways. Need to speak to your drafter about a more complex amendment to a bill? The amendment clerk can quickly connect you to the attorney in question. Need a copy of one your bills? The clerk can print one for you. Wondering about particular language in existing statute or legislative rule? The clerk has the full Colorado Revised Statutes and legislative rules on hand and can look up what you need, provided it’s not too extensive. And throughout the proceedings, the amendment clerk is communicating what is happening on the floor in e-mails to the Office of Legislative Legal Services, Legislative Council Staff, and the Joint Budget Committee to help staff members from those agencies assist legislators in the chambers.

  • New Year, New Logo

    New Year, New Logo

    by Sarah Meisch

    The Office of Legislative Legal Services (OLLS) has recently rolled out its first office-specific logo. This logo will be used on OLLS communications moving forward, including office letterhead, email signature blocks, envelopes, memo and legal opinion headers, business cards, and the OLLS website. The logo should make OLLS office communications with legislators and others more easily recognizable as coming from the OLLS.

    What is it?

    The OLLS has created a unique logo to represent the office, seeking to distinguish its role within the legislative department and better differentiate this role from the other legislative service agencies. The logo connects our professional responsibilities to the General Assembly with homages to the state of Colorado. The design features the Colorado “C” of the state flag, as well as a quill and book to symbolize the bill drafting and written legislative and legal research work performed by the office. The feather of the quill is that of our state bird, the lark bunting.

    How was it designed?

    Initially, the OLLS considered using customizable logo websites or soliciting designs from students in a local art program to design an OLLS-specific logo. It was determined, however, that Shannon Wheeler, an OLLS Legislative Editor, with her artistic background and knowledge of the role the OLLS plays in serving the legislature, was the perfect candidate to help with the in-house rebranding of the office. She illustrated several designs that incorporated books, governmental architecture, Colorado scenery, and the Colorado “C” for the office’s consideration. The OLLS Management team selected the final design, presented above, which has already been included in some OLLS staff emails and will soon be on office letterhead and business cards, and in other communications.

    We hope that you like our new logo as much as we do!

  • Beyond Bill and Amendment Drafting: Legal Services Available to You from the Nonpartisan OLLS Staff

    Beyond Bill and Amendment Drafting: Legal Services Available to You from the Nonpartisan OLLS Staff

    by Sharon Eubanks

    With the 2023 legislative session now underway, it is a good time to mention the various written materials and services that the Office of Legislative Legal Services (OLLS) can provide to you in addition to handling your bill and amendment requests. While you have already been interacting with the OLLS staff for your bill and amendment requests, please know that we can do so much more for you.

    As the General Assembly’s nonpartisan legal staff agency, the OLLS maintains an attorney-client relationship with the General Assembly, as an institution, and not with each legislator. Therefore, we are obligated to serve the best interests of the institutional client, the General Assembly, as distinguished from the individual interest of any legislator. When working individually with legislators, however, the OLLS staff, both attorneys and other professional staff, are statutorily bound to maintain the confidentiality of all bill and amendment requests before introduction, and we are ethically bound to maintain the confidentiality of the communications we have with each legislator, as a constituent of the institution.

    Being nonpartisan legislative staff also means that the OLLS aims to serve all legislators fairly and impartially, regardless of party or rank, and to ensure our work is objective, balanced, and accessible. Nonpartisanship provides the foundation for how the OLLS serves the General Assembly through our interactions with legislators, partisan staff, agency officials, lobbyists, and the public.

    In addition to our primary function of drafting bills, resolutions, and amendments, the OLLS staff, upon request, can provide legislators with written materials to help them understand Colorado law and what other states are doing to address various issues and to help them explain their bills. Due to time constraints created by bill and amendment drafting demands, which are our first priority during the legislative session, our staff may not always be able to respond immediately to every legislator’s request. But we do our best to provide the requested materials as quickly as possible and on a first-come, first-served basis. Examples of materials the OLLS can provide to you upon request include:

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

    The OLLS also provides written legal opinions, including legal opinions on issues relating to pending legislation. We hold legal opinion requests in strictest confidence. We will not release a legal opinion to other persons without the permission of the legislator who requested it. But we will give the same answer if another legislator asks us the same question, which will result in identical legal opinions for different legislators.

    There are some limitations on the materials and services we can provide to legislators due to our role as nonpartisan staff. Examples of the documents and tasks that the OLLS staff cannot provide include:

    • Voting records on an issue or bill;
    • Talking points advocating for or opposing a policy position;
    • Conveying messages that encourage a legislator to vote for a bill or discourage a legislator from voting for a bill;
    • Soliciting legislators as joint prime sponsors, cosponsors, or second house sponsors;
    • Violating confidentiality, e.g., telling a legislator about amendments prepared for other legislators to the legislator’s bill, telling a legislator what another legislator said or told others about the legislator’s bill, or telling a legislator what legal advice our office gave another legislator;
    • Assisting a legislator in counting votes; and
    • Advocating for passage or defeat of legislation on policy or any other grounds.

    These lists illustrate the materials or services we can and cannot provide, but they are not exhaustive. If a legislator has a request for materials or assistance, please ask us. If it is something we can provide, we will. You can learn more about and make full use of the materials and services we can provide by visiting our web page.

    We are here to help legislators have a successful legislative session in 2023. Whether by phone, email, or an in-person visit to our main office in Room 091 on the ground floor of the Capitol, we encourage you to fully utilize the OLLS staff for all of your needs during the session, not just for bill and amendment drafting.

     

     

     

  • New and Improved Senate Chamber Ready for Prime Time

    New and Improved Senate Chamber Ready for Prime Time

    by Katelyn Guderian

    As the 2022 interim comes to a close, so too does the last chapter of renovations to the Senate Chamber here at the Capitol.

    When the 2022 legislative session ended back in May, there wasn’t much time for resting before extensive changes to the Senate Chamber began. Since the official kick-off meeting to plan the renovations on June 17, the newly renovated Senate Chamber has undergone significant structural and cosmetic changes.

    Almost six months to the day since this leg of the project began, construction crews are wrapping up the final touches in the new and improved Senate Chamber just in time for the beginning of the 2023 session next month.

    Old Becomes New

    In an effort to modernize and upgrade the Chamber while preserving the original character and historical uniqueness, renovation crews relied on a mixture of both old and new ideas to make the updated Senate Chamber a reality. And when you’re talking about a room that’s approaching its 130th birthday, there was a lot to be done!

    Beginning in January 2023, visitors to the Senate Chamber will probably discover a space that looks and feels very familiar with a handful of noticeable changes, such as the new elevated and relocated “well”, or speaking area for Senators, and the larger and more ergonomic amendment clerk desk. The updates have left the Chamber looking like a newer, shinier, brighter version of itself, while also improving safety and accessibility for those who conduct their business within its walls.

    Blending the old with the new in a building as ornate as the Capitol was not without challenges, but the renovations allowed crews to improve upon existing and beloved structures within the Chamber. Highlights included restoring all 35 Senator desks and the Senate Staff front desk, which were all original to the space; polishing and restoring all existing brass fixtures; updating the Senate lobby, including adding a new President’s Marble; carefully replicating the original filigree stenciling on the Chamber walls; sandblasting and painting the metal vents; and preserving a long-forgotten nineteenth-century rug that lay quietly for decades underneath the historic bill safe.

    Renovating the Chamber’s Floors

    Arguably, the largest change to the Chamber is one that most visitors will never see: a completely renovated floor and sub-floor. One of the primary motivations behind this round of updates to the Chamber was to make the room more resistant to fire, and construction crews accomplished this through several months of diligent efforts and precise “floor work”.

    Once a team of movers took all the desks out of the Chamber in early July, it became possible to begin the massive task of removing, updating, and reapplying the materials that make up the Senate’s large floor.

    OLLS staff and all who visited the Capitol over the summer will likely remember the extensive scaffolding on the south side of the building that was present throughout the warmer months. Construction crews used this scaffolding to support a “rubbish chute” made of linked trash cans so they could more efficiently remove debris and trash from the Chamber during the project.

    What, exactly, had to be done? First, contractors carefully removed the original floorboards, made of Douglas fir, as well as the three inches of unexpected concrete they found underneath. These workers then spent approximately the next month reinforcing and rebuilding the sub-floor using steel joists and new concrete panels before carefully replacing the top layer of flooring.

    In addition to its reinforced floor and new out-of-sight sub-floor, the Chamber now contains new carpet that very closely resembles the pattern and color of the original carpet. The room is still predominantly red and gold and will feel much like it did during the 2022 session, but those who look closely will notice the beauty in the details brought out by months of hard work over the summer and fall.

    One hidden feature is a time capsule that Senate Staff carefully prepared and that the renovation crew placed in a corner of the Chamber deep below the new carpet. Newspapers and miscellaneous items from 2022 will help freeze time inside the capsule and, decades or even centuries into the future when the Senate floor is renovated once more, crews will discover a new piece of Colorado history.

    An Improved Audio Experience

    While the Chamber floor was undergoing renovations, the construction team also made significant updates to the access points for the AV and IT systems that run throughout the new flooring system. Future maintenance and updates should prove much easier than in the past as a result of the renovations, and those using hearing aids will also have an easier time listening to floor proceedings during future sessions.

    A “hearing loop” system now exists within the floor structure in the Senate Chamber, and this loop will provide an improved listening experience for all users with a T-Coil feature on their hearing aid. Going forward, compatible hearing aids will also have the functionality to stream audio during session straight from the Senate using an app.

    Paving the Way for Future Sessions

    As the decade-long series of renovations in the Senate Chamber winds down, Senate staff are excited and hopeful about how the changes will improve time spent in the Chamber for years to come. The space is now more fireproof, more accessible for those with disabilities, and more modern from the inside out.

    From the more efficient electrical setup and the 2022 time capsule that now both live beneath the floor to the sparkling golden fixtures throughout, the renovated Senate Chamber honors the Colorado Capitol’s architectural history while making room for a smoother, more modern and streamlined user experience during future sessions.