Colorado LegiSource

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

Author: olls

  • Happy Thanksgiving!

    Happy Thanksgiving from the Office of Legislative Legal Services

     

  • High School Football Prayer Gets the Ultimate Replay Review

    By Alana Rosen

    Kennedy v. Bremerton School District, 597 U.S. ___ (2022).

    In many states, high school football is seen almost as an unofficial religion. On June 27, 2022, the United States Supreme Court brought high school football and religion even closer by announcing its decision in favor of Mr. Joseph Kennedy in Kennedy v. Bremerton School District.

    Mr. Kennedy worked as a football coach for Bremerton High School in Washington State from 2008 to 2015. Since his hiring in 2008, Mr. Kennedy engaged in a practice of “taking a knee at the fifty-yard line to say a quiet prayer at the end of football games for about 30-seconds.” Initially, Mr. Kennedy prayed on his own but, over time, some players asked whether they could pray alongside him. Some players invited opposing players to join too. Mr. Kennedy began giving motivational speeches, with a helmet held aloft, and would deliver speeches with “overtly religious references,” which Mr. Kennedy described as prayers, while players kneeled around him. On September 17, 2015, after learning of the post-game prayers, the Bremerton School District (District) asked Mr. Kennedy to stop the practice of incorporating religious references or prayer in his post-game motivational talks on the field because the District did not want to violate the Establishment Clause. [1]

    On October 14, 2015, Mr. Kennedy sent a letter to school officials through his attorney, stating that he would resume his practice of praying at the 50-yard line because he felt “compelled” by his “sincerely-held religious beliefs” to offer a “post-game personal prayer.” He asked the District to allow him to continue the “private religious expression” alone and stated that he would wait until the game was over and the players had left the field.

    Thereafter, Mr. Kennedy and his attorney had a back-and-forth with the school district. Mr. Kennedy wanted to exercise his sincerely-held religious beliefs to offer a post-game prayer and the school expressed concern that such a prayer would lead a reasonable observer to think that he was endorsing prayer while on duty as a District employee. The District also offered accommodations for religious exercise that would not be perceived as endorsing religion or interfere with his job performance.

    Undeterred, Mr. Kennedy continued to pray at the 50-yard line while post-game activities were still ongoing, and as a result, the District placed him on paid administrative leave for violating its directives by thrice kneeling on the field and praying immediately following games before rejoining the players for post-game talks. On August 9, 2016, Mr. Kennedy filed suit in the Western District of Washington contending that the District violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment.

    In this case, the United States Supreme Court considered whether a public school employee who says a brief, quiet prayer while at school and visible to students is engaged in government speech, which is not protected by the First Amendment. And whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause compels public schools to prohibit religious expression.

    Since the founding of this country, the Religion Clauses of the First Amendment—the Establishment Clause and the Free Exercise Clause—have been understood to jointly demand government neutrality towards religion. The Free Exercise Clause recognizes the right to believe and practice a faith, or not. The Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” The Free Speech Clause protects religious speech.

    A plaintiff bears a certain burden to demonstrate an infringement of rights under the Free Exercise and Free Speech Clauses. In this case, the Court held that Mr. Kennedy discharged his burdens under the Free Exercise Clause and the Free Speech Clause, which were “sincerely motivated religious exercises.”

    To determine whether the government violated the Free Exercise Clause, the Court considered whether a government policy is neutral and generally applicable. Justice Gorsuch, writing for the six-member majority, stated that a government policy will not qualify as neutral if it is specifically directed at a religious practice. Additionally, a government policy will fail the general applicability requirement if the policy prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way or if it provides a mechanism for individualized exemptions.

    Here, the Court determined that the District’s challenged policies were neither neutral nor generally applicable. The Court held that the District’s policy was not neutral towards religious conduct. The Court further held that the District’s challenged policy failed the general applicability test because the District had advised against renewing Mr. Kennedy’s contract because he “failed to supervise student-athletes after the game.” The Court noted that any sort of post-game supervision requirement must be applied evenly across the board, and while other coaching staff briefly visited with friends or took personal calls, Mr. Kennedy chose to briefly pray at the 50-yard line.

    The Court then analyzed whether the District violated Mr. Kennedy’s freedom of speech. The Court held that Mr. Kennedy offered his prayers in his capacity as a private citizen, which did not amount to government speech because the prayers were not ordinarily within the scope of Mr. Kennedy’s duties as a coach. To come to this conclusion, the Court applied the “Pickering – Garcetti” two-step test.[2] The first step of the test is to determine whether a public employee is speaking as a the public employee doing official duties or whether the public employee is speaking as a citizen addressing a matter of public concern. The second step of the test is that the government may seek to prove that its interests as an employer outweigh an employee’s private speech as a matter of public concern.

    In applying the “Pickering-Garcetti” test, the Court first determined Mr. Kennedy was speaking as a private citizen as “Mr. Kennedy’s prayers did not ‘owe [their] existence’ to Mr. Kennedy’s responsibilities as a public employee.” The Court stated that the timing and circumstances of Mr. Kennedy’s prayers confirm this point because the prayer was conducted during the post-game period. Justice Gorsuch stated that “[t]eachers and coaches served as vital role models, but [the District’s] argument commits the error of positing an excessively broad job description by treating everything teachers and coaches say in the workplace as government speech subject to government control.” In the dissent, however, Justice Sotomayor argued that Mr. Kennedy was on the job as a school official on government property when he incorporated a public, demonstrative prayer into government-sponsored school related events as a regularly scheduled feature to those events.

    The District argued that it was essential to suspend Mr. Kennedy to avoid violations of the Establishment Clause and relied on the Lemon test—a three-step test established in Lemon v. Kurtzmann—and its progeny to determine Establishment Clause violations. [3] Justice Gorsuch, however, said that the Court had abandoned Lemon and the related endorsement test. The Court argued that these tests invited chaos and led to differing results in materially identifiable cases. Instead, in place of Lemon, the Court instructed that the Establishment Clause must be interpreted by “reference to historical practices and understandings.” Justice Sotomayor questioned the Court’s new “history and tradition” test because the Court did not provide guidance on how to apply the test, potentially causing confusion to school administrators, faculty, and staff trying to implement it.

    What does Kennedy mean for Colorado?

    Right now, it is unclear how Kennedy will affect Colorado and education law. While teachers or school personnel could bring forth similar arguments for their religious conduct, courts will ultimately have to determine what the “history and tradition” test is in order to answer whether religious conduct violates the Establishment Clause. Because the Court did not provide guidance on how to apply the “history and tradition” test, it will be up to the lower courts to decide.

     

    [1] The Establishment Clause prohibits the government from making any law “respecting an establishment of religion” and it bars the government from taking sides in religious disputes or favoring or disfavoring anyone based on religion or belief (or lack thereof).

    [2] Garcetti v. Ceballos, 547 U.S. 410 (2006) (holding the First Amendment does not prohibit managerial discipline of public employees for making statements pursuant to employees’ official duties); Pickering v. Bd. of Ed. of Township High Sch. Dist. 205 Will Cty., 391 U.S. 563 (1968) (holding a teacher’s right to speak on issues of public importance may not furnish the basis for his dismissal from public employment).

    [3] Lemon v. Kurtzman, 401 U.S. 602 (1971) (establishing a three-part test to determine First Amendment Establishment Clause violations).

  • Remarks on the “Unremarkable” Carson v. Makin

    by Jacob Baus

    “Unremarkable”

    Is this a judgmental slight from Downton Abbey’s Mr. Carson, or a harsh but fair critique from TV personality Carson Kressley? Neither! This is how U.S. Supreme Court Chief Justice John Roberts described the holding in a recent case, Carson v. Makin.

    The First Amendment of the U.S. Constitution states, in part, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; . . .”, and these clauses are commonly referred to as the Establishment Clause and Free Exercise Clause. Carson is the latest case concerning the provision of public money to a religious-affiliated school and how states have attempted to navigate the issue with respect to these clauses.

    Maine is a sparsely populated state, and many of its school districts do not operate a secondary school. Consequently, Maine created a tuition assistance program for families whose resident school district does not provide a secondary school education. An eligible family chooses a school, and the resident school district sends tuition assistance payments to the school, if the school is eligible.

    To be eligible, a school must satisfy certain education-related requirements, may be public or private, and must be nonreligious. Maine excluded religious schools from the program based on a position that the provision of public money to religious schools violated the Establishment Clause of the First Amendment of the U.S. Constitution. Eligible families sued Maine’s Commissioner of Education, arguing the program’s nonreligious requirement violated the Free Exercise, Establishment, and Equal Protection Clauses of the U.S. Constitution.

    Applying principles from the related Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue cases, the Court arrived at a similar conclusion in Carson; that is, excluding religious schools from program eligibility because of their religious character violates the Free Exercise Clause. This reliance on consistent and recent precedent may explain why Chief Justice Roberts found the conclusion in this case to be unremarkable. Nevertheless, the Court addressed a few significant considerations and arguments in reaching its conclusion.

    First, the Court noted that the flow of public funds to a religious institution through the independent choice of a benefit recipient does not offend the Establishment Clause. Consequently, excluding religious schools from program eligibility promotes stricter separation between church and state than the Establishment Clause requires. And, the Court continued, a state’s interest in separating church and state further than the Establishment Clause requires is not sufficiently compelling in this case to justify a Free Exercise Clause violation to deny a public benefit because of religious character.

    Second, Maine argued that the benefit at issue was providing the “rough equivalent of a public school education” and therefore must be secular. The Court rejected this argument, citing numerous facts about the program undermining this assertion. The Court ultimately concluded that the only real manner in which an eligible private school is the “equivalent” of a public school under the program is that it must be secular, thereby supporting the Court’s position that the program excludes based upon religious character.

    Third, Maine argued that the nonreligious requirement was not religious character-based, but rather religious use-based. Maine argued that because religion permeates everything a religious school does, the nonreligious requirement was effectively use-based and therefore permissible. Maine argued this distinction because the Court has previously held that a state’s religious use-based exclusion was constitutionally permissible.[1] The Court rejected this argument, concluding that a prohibition on character-based discrimination is not grounds for engaging in use-based discrimination.

    What does Carson mean for Colorado?

    Nothing in the Carson decision requires Colorado to provide public money to support private schools. The Carson decision reaffirms an important point of clarity from the Espinoza decision:

    [A] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.

    It is not novel to state that the General Assembly must be cautious if a public program or benefit appears to categorically exclude a religious school or institution. It appears from Carson, Espinoza, and Trinity, that the Court is likely inclined to find that religious exclusions are character-based, and therefore in violation of the Free Exercise Clause, even if a state has a no-aid provision similar to article IX, section 7 of the Colorado Constitution.

    Although it is always difficult to predict what happens next, the Court will likely have future opportunities to examine whether there is a meaningful constitutional distinction between exclusions that are character-based versus use-based in nature and how states should consider issues that fall in an often-found tension between the Free Exercise and Establishment Clauses.

     

    [1] Locke v. Davey, 540 U.S. 712 (2004) (A publicly funded Washington scholarship excluded the use of the scholarship for a degree in theology. The United States Supreme Court concluded the exclusion was not unconstitutional.)

  • 2022 Interim Committee Recap – Part 2

    Yesterday, we brought you Part 1 of the 2022 Interim Committees Recap series. Today in Part 2, we’re covering the remainder of interim committees and their recommended legislation, which were considered for introduction at the Friday, October 14, Legislative Council meeting. Click here to listen to the meeting.

    Transportation Legislation Review Committee

    The Transportation Legislation Review Committee met twice. At the August 9 meeting and the September 10 meetings, the committee heard presentations:

    • From public highway authorities;
    • From the Colorado Department of Transportation;
    • About climate reduction goals and reducing vehicle miles traveled;
    • From the Colorado Motor Carriers Association;
    • About driver education requirements;
    • From the Colorado Cross-Disability Coalition
    • About fleet license plates;
    • From the Regional Transportation District ;
    • From Bicycle Colorado and Denver Streets Partnership;
    • From Toyota;
    • From the Division of Motor Vehicles;
    • About transportation and Senate Bill 22-180;
    • From the Front Range Passenger Rail District;
    • From Colorado Association of Transit Agencies; and
    • About local transportation and Senate Bill 22-180.

    The committee also drafted and considered ten bills, but ultimately voted to advance the following bills:

        In addition, subject to current statutory requirements relating to the use of approved third-party providers, the department, to the extent feasible, is required to allow an owner of a rental vehicle fleet that is authorized to transfer license plates to maintain its own inventory of new number plates and to use a third-party provider to handle all or any portion of both its vehicle registration, lien, and titling needs and its number plate inventory ordering, management, and distribution needs.

        A person who fails to yield commits a class A traffic infraction and is subject to a fine of $70 and an $11 surcharge.

        The bill replaces the current driver’s education requirements for a minor who is under 18 years of age to be issued a driver’s license with requirements that the minor:

      1. Complete a 30-hour driver education course, which may include an online course, approved by the department; and
      2. Receive at least 6 hours of behind-the-wheel driving training with a driving instructor or, for minors who live in rural areas of the state, 12 hours of behind-the-wheel training with a parent, a legal guardian, or an alternate permit supervisor.

        The bill adds a requirement that a minor who is 18 to 21 years of age must successfully complete a 4-hour prequalification driver awareness program to be issued a driver’s license.

        A person who has been convicted of certain violent or sexual crimes is prohibited from providing behind-the-wheel driving instruction to minors. A commercial driving school is prohibited from employing such a driving instructor to provide behind-the-wheel driving instruction to minors. Each instructor employed by a commercial driving school must obtain a fingerprint-based criminal history record check to verify that the instructor has not committed a disqualifying crime.

        The bill also authorizes the department of revenue to cancel or deny registration of a commercial motor carrier that fails to cooperate with the completion of a safety compliance review within 30 days.

    Legislative Oversight Committee Concerning the Treatment of Persons with Behavioral Health Disorders in the Criminal and Juvenile Justice Systems

    The Legislative Oversight Committee Concerning the Treatment of Persons with Behavioral Health Disorders in the Criminal and Juvenile Justice Systems (BHDCJS) met four times during the 2022 interim. The committee heard presentations from multiple stakeholders, behavioral and mental health advocates, and representatives from state executive departments concerning the issues facing persons with behavioral health disorders who have been in contact, in one form or another, with the criminal or juvenile justice systems.

    The committee requested seven bills to be drafted. Of those, two were withdrawn prior to the September 29, 2022, meeting, and one was withdrawn at that meeting. The following four bills were recommended by the committee to the Legislative Council for consideration:

    • Bill A – Concerning issues related to juvenile competency to proceed. The bill addresses issues related to a determination of juvenile competency to proceed (competency) and restoration of competency (restoration). The bill allows:
      • The district attorney, defense attorney, guardian ad litem, department of human services, a competency evaluator, a restoration treatment provider, and the court, without written consent of the juvenile or further order of the court, to access competency evaluations and restoration evaluations, including all second evaluations; information and documents related to competency evaluations; the competency evaluator, for the purpose of discussing the competency evaluation; and the providers of court-ordered restoration services for the purpose of discussing such services;
      • Parties to exchange names, addresses, reports, and statements of physicians or psychologists who examined or treated the juvenile for competency;
      • The court or any party to raise, at any time, the issue of a need for a restoration evaluation of the juvenile’s competency; and
      • A juvenile to be examined by a competency evaluator of the juvenile’s own choice and to request a second evaluation in response to a court-ordered competency evaluation or a court-ordered restoration evaluation.

        If the court determines that the juvenile is incompetent to proceed and unlikely to be restored to competency in the reasonably foreseeable future, a time frame is set forth for the dismissal of charges based on the severity and type of charge.

        The bill requires facilities that utilize clinical restraints to implement procedures to ensure frequent and consistent monitoring for the individual subjected to the clinical restraint and uniform documentation procedures concerning the use of the clinical restraint.

        The bill limits the amount of time an individual may be subjected to a clinical restraint per each restraint episode and within a calendar year.

        The bill prohibits the use of an involuntary medication on an individual, unless:

      • The individual is determined to be dangerous to the individual’s self or another person and the treatment is in the individual’s medical interest;
      • All less restrictive alternative interventions have been exhausted; and
      • The involuntary medication is administered after exhaustion of procedural requirements that ensure a hearing, opportunity for review, and right to counsel.

        The bill requires the department of corrections (department) to submit an annual report to the judiciary committees of the senate and house of representatives with data concerning the use of clinical restraints and involuntary medication in the preceding calendar year.

        The bill requires the department to include specific data concerning the placement of individuals in settings with heightened restrictions in its annual administrative segregation report.

    Water Resources and Agriculture Review Committee

    The Water Resources and Agriculture Review Committee (WRARC) met three times during the interim and heard testimony from various water stakeholders in the state. On August 4, 2022, the WRARC asked requested 11 bills to be drafted to address various subject matters relating to water issues in the state. However, by the time the committee met on September 22 to select which bill drafts to advance for the consideration of the Legislative Council, nine of those requests were withdrawn. As a result, the WRARC voted to advance only the following two bills:

    • Bill A – Task Force on High-altitude Water Storage creates a task force to study the feasibility of implementing water storage in the form of snow in high-altitude areas of the state (task force). The task force must submit a report to the WRARC on or before June 1, 2024, which report:
      • Describes the feasibility of implementing high-altitude water storage in Colorado;
      • Describes findings and recommendations regarding issues considered by the task force; and
      • Describes any legislative proposals associated with the implementation of high-altitude water storage in Colorado, including identification of any state agencies that will be responsible for implementing legislative directives and identification of funding sources.

        The task force is repealed, effective December 1, 2024.

    • Bill B – Water Resources & Agriculture Review Committee converts the WRARC from an interim committee to a committee that may meet year-round. The bill also strikes obsolete language, removes limitations on the number of meetings and the number of field trips the WRARC may hold, and requires the WRARC to meet at least four times during each calendar year.

    Wildfire Matters Review Committee

    The Wildfire Matters Review Committee (WMRC) met five times during the 2022 interim and took one field trip. On September 28, 2022, the WMRC voted to advance the following five bills to the Legislative Council:

    • Bill A – Forestry and Wildfire Mitigation Workforce. The bill directs the Colorado state forest service (state forest service) to develop educational materials for high school students relating to career opportunities in forestry and wildfire mitigation. The bill also creates the timber, forest health, and wildfire mitigation industries workforce development program, which provides partial reimbursement to timber businesses and other related entities for the costs of hiring interns. The bill also authorizes the expansion and creation of forestry programs in the community college system and at Colorado mountain college. Finally, the bill directs the state board for community colleges and occupational education to increase the number of qualified educators at certain colleges that deliver wildfire prevention and mitigation programs.
    • Bill B – Wildfire Detection Technology Pilot Program. The bill requires the center of excellence for advanced technology aerial firefighting in the division of fire prevention and control (division) in the department of public safety to establish one or more remote camera technology pilot programs.
    • Bill C – Timber Industry Incentives. The bill creates the timber, forest health, and wildfire mitigation industries workforce development program in the state forest service, which provides partial reimbursement to timber businesses and other related entities for the costs of hiring interns. The bill also creates an income tax credit for tax years 2023 through 2027 for timber businesses and other related businesses.
    • Bill D – Updates To State Forest Service Tree Nursery. The bill requires the state forest service to make certain upgrades and improvements to its seedling tree nursery.
    • Bill E – Fire Investigations.  The bill directs the director of the division to report on the investigation of wildland fires in the state and creates the fire investigation fund to fund fire investigations.

  • 2022 Interim Committee Recap – Part 1

    Several legislative interim committees have been holding public meetings since the end of the last legislative session to discuss topics relevant to Colorado and to recommend legislation to the Legislative Council committee for approval for introduction in 2023. This week, we’re providing a summary of each of committee and its recommended legislation. The Legislative Council met on Friday, October 14, to review interim committee legislation proposals. Click here to listen to the meeting.

    For more information about interim committees generally and how they operate, see “Interim Committees: Just the Facts, Ma’am”, posted July 21, 2017.

    Colorado Youth Advisory Council Review Committee

    The Colorado Youth Advisory Council Review Committee met three times during the interim. The committee heard presentations from its student members about discipline in public schools, completing financial aid applications, increasing the number of school psychologists, substance use, educational standards, eating disorders, weight discrimination, and youth sexual health. The committee requested the drafting of three bills. The committee recommended all three bills to the Legislative Council.

    • Bill A – Disordered Eating Prevention. The bill creates the Office of Disordered Eating Prevention (office) in the Department of Public Health and Environment (department). The bill requires the office and the department to:
      • Create a resource bank for research and resources for treatment and services;
      • Collaborate with the Office of Suicide Prevention, the Behavioral Health Administration, and organizations within the healthcare industry to close gaps in care and provide support for individuals with disordered eating transitioning out of inpatient care;
      • Create outreach resources educating youth on how to seek care for disordered eating;
      • Partner with the Department of Education to inform teachers, administrators, school staff, and parents on disordered eating prevention and treatment;
      • Coordinate the Disordered Eating Prevention Research Grant Program; and
      • Prepare written information for primary care offices and providers throughout the state.

        The bill also creates the Disordered Eating Prevention Commission (commission) in the department consisting of seventeen members that have a personal connection to disordered eating prevention. The purpose of the commission is to provide leadership on disordered eating prevention in Colorado; set statewide data-driven, evidence-based, and clinically informed priorities for disordered eating prevention; serve as the advisor to the office of disordered eating prevention; provide a forum for government agencies, lawmakers, and community members to examine the current status of disordered eating prevention policies; provide a voice for youth on issues impacting youth; and provide forums for diverse perspectives and communities for support and information.

        The bill further creates the Disordered Eating Prevention Research Grant Program (grant program) in the department. The purpose of the grant program is to provide financial assistance to eligible applicants to conduct research on risk factors for disordered eating, the impact disordered eating has on Colorado, or public interventions that examine and address the root causes of disordered eating.

    • Bill B – Secondary School Student Substance Use. The bill creates the Secondary School Student Substance Use Committee (committee) in the Department of Education (department) to develop a practice or identify or modify an existing practice for secondary schools to implement that identifies students in need of treatment for substance use, offers a brief intervention, and refers students to substance use treatment resources. The bill requires the department to publish a report of the committee’s findings and submit the report to the superintendent of every school district and the chief administrator of every institute charter school that is a secondary school.
    • Bill C – Disproportionate Discipline in Public Schools. The bill requires each school district board of education, institute charter school board, or governing board of a board of cooperative services (BOCES) to adopt a policy to address disproportionate disciplinary practices in public schools. Each school entity must develop, implement, and annually review improvement plans if the data reported to the Department of Education shows disproportionate discipline practices at the local education provider. Each provider shall provide to the parents of students enrolled in the school written notice of the improvement plan and issues identified by the local education provider. The bill requires school districts to consider certain factors before suspending or expelling a student. The bill requires school districts to document in a student’s record and compile in the Safe School report any alternative disciplinary attempts before suspending or expelling a student.

    Legislative Interim Committee on Judicial Discipline

    The Legislative Interim Committee on Judicial Discipline met five times during the 2022 interim to examine Colorado’s judicial discipline system, including the topics outlined in Senate Bill 22-201. The committee heard presentations from Colorado’s Judicial Department, the Colorado Commission on Judicial Discipline, and experts in the field of judicial discipline, and the committee heard public testimony at each of its first four meetings. The committee requested the drafting of two bills and one resolution. Of those, one bill was withdrawn at the September 30, 2022, meeting and the other two pieces of legislation were recommended by the committee to the Legislative Council for its consideration.

    • Bill A – Submitting to the Registered Electors of the State of Colorado an Amendment to the Colorado Constitution Concerning Judicial Discipline. The concurrent resolution amends section 23 of article VI of the Colorado Constitution as it relates to judicial discipline. The resolution clarifies the commission on judicial discipline’s (commission) duties and authority. The resolution repeals the authority of the commission and special masters to conduct formal judicial disciplinary proceedings and creates an independent adjudicative board (board) to conduct formal proceedings and hear appeals of the commission’s orders imposing informal sanctions. A panel of the board may dismiss a complaint, impose informal sanctions, or impose formal sanctions. The resolution sets the standards of review to be used by the supreme court when it reviews a panel’s decision and requires a tribunal of seven randomly selected court of appeals judges to review a panel’s decision in cases involving a Colorado supreme court justice, a staff member to a justice, or a family member of a justice, or when more than two justices have recused themselves from the proceeding. The resolution requires judicial discipline proceedings be made public at the commencement of formal proceedings. The resolution clarifies the circumstances in which the commission may release otherwise confidential information. Finally, the resolution creates a rule-making committee to propose rules for the commission. The supreme court approves or rejects each rule proposed by the rule-making committee.
    • Bill B – Judicial Discipline. The bill establishes rule-making procedure for rules governing the commission on judicial discipline (commission) and judicial discipline adjudicative board (board) proceedings. The bill also clarifies who provides administrative staff support for board proceedings. The bill permits a person to submit a request for evaluation of judicial misconduct by mail or online and also permits a person to submit a confidential or anonymous request for evaluation. The bill establishes a process for the office of judicial discipline to provide complainants with information about the judicial discipline process and about the status of the complainant’s request and any subsequent investigation and disciplinary or adjudicative process. The bill requires the commission include certain information in its annual report and make the information available online. The bill repeals the statute establishing the legislative interim committee on judicial discipline because the committee is not authorized to meet after the 2022 legislative interim.

    Legislative Oversight Committee Concerning Tax Policy

    The Legislative Oversight Committee Concerning Tax Policy met four times during the interim. The committee heard presentations on severance taxes, sales and use taxation of services, national perspectives on property taxes, and collecting excise tax from delivery sellers under House Bill 20-1427. Additionally, the state auditor’s office presented tax expenditure evaluations. The committee also set the scope of tax policies to be considered by its subordinate Task Force Concerning Tax Policy to include applying state income tax to federal adjusted gross income and options for expanding sales and use tax to apply to services.

    The committee requested nine bills for drafting and recommended five to the Legislative Council for introduction:

    Pension Review Commission and Pension Review Subcommittee

    The Pension Review Commission (commission) met twice during the interim. It heard presentations from the Fire and Police Pension Association (FPPA) and the Public Employees’ Retirement Association (PERA). In addition, the commission heard proposals for legislation from its own Pension Review Subcommittee. The Pension Review Subcommittee itself met three times to: (1) Hear presentations regarding House Bill 22-1029 – Compensatory Direct Distribution to PERA and the Direct Distribution to PERA; (2) Discuss proposed legislation and questions to be submitted to PERA; (3) Hear from PERA regarding answers to their submitted questions; and (4) Discuss its annual reports to the General Assembly and the citizens of Colorado.

    The Pension Review Commission requested that three bills be drafted and ultimately recommended one bill to the Legislative Council for introduction as follows:

    • Bill A – Temporary Tax Credit for Public Service Retirees.  Although the bill as originally requested and drafted increased the pension or annuity income tax deduction, the commission amended the bill in committee to create an income tax credit for public service retirees. The bill creates an income tax credit for income tax years commencing on or after January 1, 2023, but prior to January 1, 2025, for a qualifying public service retiree. A “public service retiree” means a full-time Colorado resident individual who is 55 years of age or older at the end of the 2023 or 2024 income tax year and who is a retiree of a Colorado public pension plan administered pursuant to the Colorado Revised Statutes or a retiree of a public pension plan administered by a local government of the state of Colorado.

    Sales and Use Tax Simplification Task Force

    The Sales and Use Tax Simplification Task Force met four times during the interim. It heard presentations from the Colorado Department of Revenue, the Colorado Counties Inc. (CCI), the Colorado Municipal League (CML), local government representatives, and private industry stakeholders. A general discussion relating to the SUTS system, the retail delivery fee, Colorado sale and use taxes, including taxes on construction materials through the building permit process, the simplification of the state sales return, and local lodging taxes with an opportunity for public comment occurred. In addition, the task force heard an overview of the Wayfair v. Lakewood complaint and sales and use tax expenditure evaluation reports from the Office of the State Auditor.

    The task force requested that four bills and one resolution be drafted and ultimately recommended one bill and one resolution to the Legislative Council for introduction as follows:

    • Resolution A – Uniform Sales & Use Tax on Construction Materials. Resolution A urges municipalities that locally collect their taxes to cooperate on a uniform administration of sales and use tax on construction materials, to standardize information on building permits, and to speed up the issuance of certain documentation. It also requests that the Colorado Municipal League update the task force on these efforts.
    • Bill B – Electronic Sales & Use Tax Simplification System. The electronic sales and use tax simplification system (SUTS) is a one-stop portal designed to facilitate the collection and remittance of sales and use tax. For the purpose of improving the system, the bill requires the department to make certain changes to the system and permits it to make others. It also prohibits the department from imposing certain convenience fees for payments through SUTS and requires the department to promote SUTS for the purpose of increasing the awareness, participation, and compliance by retailers and local taxing jurisdictions.
  • Mark Your Calendars, Session Starts on Monday, January 9, 2023.

    Mark Your Calendars, Session Starts on Monday, January 9, 2023.

    By Ed DeCecco

    With all due respect to The Mamas and Papas, Monday is a fine day of the week too. Yes, we sometimes get a little sad on Sunday night anticipating it, and of course Friday is objectively better. Still, the word is derived from the Anglo-Saxon word Mōnandæg, which loosely means “the moon’s day,” and the moon is awesome. Plus, there is Monday Night Football, and there is an internet myth that it is the least likely day of the week to have rain, and … wait, I can’t do this. I’ve tried to be cheerful, but I’m with the majority of the rest of the world—Mondays kind of stink!

    Or at least they usually do, but Monday, January 9, 2023, is certainly an exception. On that date, the 74th General Assembly of the State of Colorado will convene its First Regular Session.

    The reason session is starting on a Monday is a combination of constitutional provisions. Section 1 of article IV of the state constitution requires the newly elected Governor, Lieutenant Governor, Attorney General, Treasurer, and Secretary of State to take office on the second Tuesday of January, which this year falls on January 10, 2023. And section 3 of article IV of the state constitution requires the election returns for these officers to be transmitted to the Speaker of the House, “who shall immediately, upon the organization of the house, and before proceeding to other business, open and publish the same in the presence of a majority of the members of both houses of the general assembly, who shall for that purpose assembly in the house of representatives.” Under section 3, members of both houses are also required to decide the winners if the general election ends in a tie or is contested. To ensure the statewide officers can take office in a timely manner and to comply with its constitutional duties, the General Assembly must convene earlier than the second Tuesday in January.

    Luckily, the General Assembly has some flexibility on when it starts. Section 7 of article V of the state constitution requires the General Assembly to meet in regular session at 10 a.m. “no later than the second Wednesday of January each year.” Thus, the General Assembly will start on the second Monday of January, instead of the second Wednesday, which is the default start date.

    When this last occurred in the 2019 legislative session, the General Assembly adopted House Joint Resolution 18-1021 to set the convening date on the Friday prior to the second Tuesday and to make related changes to the deadlines set forth in Joint Rules 23 and 24. It then passed another resolution in 2019 to restore the deadlines after the session to their prior form.

    While everyone enjoys a two-for-one deal when it is a BOGO at King Soopers, it is less appealing with legislation. So this time around, the General Assembly adopted House Joint Resolution 22-1025, which created Joint Rule 22A to establish alternative deadlines that only apply for the 2023 legislative session. This rule only applies for this session, and it repeals on January 1, 2024. Joint Rule 23 and other related rules will apply again thereafter, or at least they’ll apply until the next time the General Assembly has to create a one-time rule to address this type of situation, which will be in 2027.

    An early convening date means earlier bill request deadlines. This year, each returning legislator must submit three of their five bill requests to the Office of Legislative Legal Services (OLLS) no later than November 29, 2022. Each legislator who is newly elected to the General Assembly must submit three of their five bill requests to the OLLS no later than December 13, 2022. Both of these dates are a few days earlier than usual. A number of other deadlines have also been slightly altered, and you can find those deadlines in House Joint Resolution 22-1025, or in this handy document.

    One deadline that is not included in the resolution or rules but that warrants mention is sine die. Under section 7 of article V of the Colorado Constitution, sessions are limited to 120 days in length, and in most years, the General Assembly uses all of its allotted time. If that is the case again in 2023, then, barring any unforeseen circumstances,[1] the General Assembly will adjourn on Monday, May 8, 2023. So now we have at least two Mondays to look forward to in 2023!

     

    ______________________________________________________________________

    [1] The author has assured the LegiSource Board that he vigorously knocked on wood after typing this sentence, so as to avoid the cosmic response of an increased likelihood in 2023 of the application of Joint Rule 44 (g), which applies to the counting of legislative days during a temporary adjournment during declared disaster emergency.

  • New Water Demand Management Agreement on the Colorado River (Updated)

    New Water Demand Management Agreement on the Colorado River (Updated)

    by Thomas Morris

    Editor’s note: This article was originally posted September 19, 2019. We are reposting it on September 22, 2022 with updated information.

    What happens when the demand for a commodity exceeds supply? Economic theory predicts that the price for the commodity will increase. We’re all aware that water in Colorado is relatively scarce; in particular, the northern Front Range is highly dependent on water imported from the Colorado River, which is subject to increasing demands and dwindling supply. Are increases in the price of water sufficient to address this deficit?

    As we’ll see, due to multiple layers of state, interstate, and federal law and a combination of climate change effects, prolonged drought, and demand increases, our Colorado River water supply is at risk, and more is required to avoid fairly serious adverse consequences than simply relying on the market to equalize the supply and demand for water.

    The law of the river. The use of Colorado River water is strictly governed by the so-called “law of the river,” which is a complex interplay of interstate compacts, federal statutes and regulations, United States Supreme Court decrees, and applicable state law.

    To avoid having California’s rapid growth gobble up available Colorado River supplies, in 1922 the seven states in the Colorado River basin[1] entered into an interstate compact. The Colorado River Compact (codified in article 61 of title 37, C.R.S.) allocated 7.5 million acre-feet[2] (Maf) of water per year to the upper basin states (including Colorado) and 8.5 Maf to the lower basin states, for a total 16 Maf.[3] Later, the upper basin states entered into the Upper Colorado River Compact (codified in article 62 of title 37, C.R.S.), pursuant to which 51.75% of the upper basin’s supplies were allocated to Colorado.

    Naturally, the states presumed that the river’s supplies were adequate, even plentiful, to meet these allocations. Indeed, from 1905 to 1921 the flow at the boundary between the upper and lower basins was about 18 Maf. Unfortunately, the 1922 compact was negotiated during a time of relatively high flows: rather than more than 16 Maf of flow per year, actual supplies under current conditions may be as low as 14.8 Maf. Moreover, climate change is likely to reduce this supply even more:

    Colorado River flows decline by about 4 percent per degree Fahrenheit increase . . . . Thus, warming could reduce water flow in the Colorado [River] by 20 percent or more below the 20th-century average by midcentury, and by as much as 40 percent by the end of the century.[4]

    Despite this somewhat grim outlook, the upper basin’s ability to comply with its delivery obligation to the lower basin is enhanced by two facts:

    • The 1922 compact states the delivery obligation as 75 Maf over 10 years rather than 7.5 Maf each year; and
    • Numerous reservoirs with significant storage capacities are located in the upper basin. These reservoirs, including Lake Powell[5] and several reservoirs referred to as the Aspinall Unit, store excess supplies in wet years and release them in dry years to comply with the delivery obligation.

    Staving off a shortage declaration through demand management. The federal Bureau of Reclamation operates the Aspinall Unit as well as Lake Powell and Lake Mead, which is the lower basin’s primary reservoir. Pursuant to an agreement[6] between the seven compacting states, the bureau operates the Aspinall Unit and Lakes Powell and Mead to maintain the water level in Lake Mead above 1,075 feet in elevation. If the water drops to that level, the bureau makes a “shortage declaration” that triggers mandatory restrictions on water diversions and usage in the lower basin. A shortage declaration may also be the first step toward a determination that the upper basin has failed to comply with its delivery obligation, which would result in the curtailment of upper basin diversions that postdate the 1922 compact.

    In order to reduce the risk of a shortage declaration occurring, the upper and lower basins have both recently adopted updated drought contingency plans.[7] Congress has approved the plans.[8]

    In particular, the upper basin’s drought contingency plan involves three elements:

    • Augmentation, consisting of weather modification efforts to increase precipitation and the removal of phreatophytes (plants that have deep root systems that draw water from near the water table and often consume an unusually large amount of water);
    • Operating the Aspinall Unit to benefit storage in Lake Powell; and
    • Demand management.

    Demand management in this context means, roughly, a temporary, voluntary, and compensated reduction in consumptive water use by specific water rights owners. In Colorado, demand management could involve a front range metropolitan water provider (whose water rights postdate the 1922 decree and thus whose diversions would be curtailed if the upper basin failed to meet its delivery obligation) paying a senior agricultural user on the western slope to temporarily not divert water from the Colorado River or its tributaries. The metropolitan water provider would then be able to continue to export Colorado River water to its Front Range water users. As the saying goes, water flows uphill toward money.

    The General Assembly recently supported the development of demand management programs by enacting SB 19-212. The bill appropriates $1.7 million from the general fund to the department of natural resources for use by the Colorado Water Conservation Board.  The board will use this money for stakeholder outreach and technical analysis to develop a water resources demand management program.

    The days of hoping that Colorado River supplies will somehow recover or that the lower basin will, by some miracle, substantially reduce its water consumption enough to avoid a shortage declaration are over. Colorado is preparing for a hotter, drier climate in which water demands continue to increase while supplies diminish. Water demand management is one of the primary tools (along with conservation and the development of additional storage) that will be used to adapt to this new normal.

    In the article originally posted in 2019, the author posed the question “Are increases in the price of water sufficient to address this [water] deficit?” Following is an update that suggests the answer to this question is a resounding “no”, as the Colorado River water supply continues to dwindle.

    UPDATE:[9] On August 16, 2022, the Bureau of Reclamation within the federal Department of the Interior released its “Colorado River Basin August 2022 24-Month Study”, which sets the annual operations for Lake Powell and Lake Mead in 2023 in light of critically low reservoir conditions. The key findings include:

    Lake Powell’s water surface elevation on January 1, 2023, is projected to be 3,522 feet, which is 178 feet below full (3,700 feet) and only 32 feet above the minimum level required in order to continue to produce power at Glen Canyon Dam (3,490 feet). The Department of the Interior will limit 2023 releases from Lake Powell in order to protect it from declining below 3,525 feet at the end of December 2023. The Department will also evaluate hydrologic conditions again in April 2023.

    Lake Mead’s water surface elevation on January 1, 2023, is projected to be 1,047.61 feet, which reflects an unprecedented shortage condition that requires shortage reductions and water savings contributions from the Lower Basin States and Mexico, as follows:[10]

      • Arizona: 592,000 acre-feet, which is approximately 21% of the state’s annual apportionment;
      • Nevada: 25,000 acre-feet, which is 8% of the state’s annual apportionment; and
      • Mexico: 104,000 acre-feet, which is approximately 7% of the country’s annual allotment.

    There is no required water savings contribution for California in 2023 under the current operating condition.

    The Department and the Bureau of Reclamation continue to share and update information concerning the increasing risks impacting Lake Powell and Lake Mead. For more information, visit https://www.doi.gov/news.

    _________________________________________________________________

    [1] The seven states of the Colorado River Basin are Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada, and California. The upper basin consists mainly of Wyoming, Colorado, and Utah; New Mexico, Arizona, Nevada, and California are mainly in the lower basin.

    [2] An acre-foot is the amount of water required to cover one acre to a depth of one foot. An acre is about the size of a football field, including both end zones.

    [3] For comparison, Colorado consumes about 5.3 Maf per year, but this includes water that has been reused multiple times. See the state water plan, Figure 5-1. https://www.colorado.gov/pacific/cowaterplan/plan

    [4] http://theconversation.com/climate-change-is-shrinking-the-colorado-river-76280

    [5] Lake Powell is located directly above the boundary between the upper and lower basins; releases from Lake Powell are the primary method by which the upper basin complies with the 1922 compact.

    [6] Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead”, 72 FR 62272 (11/2/07); https://www.govinfo.gov/content/pkg/FR-2007-11-02/pdf/E7-21417.pdf

    [7] Agreement Concerning Colorado River Drought Contingency Management and Operations; https://www.usbr.gov/dcp/docs/final/Companion-Agreement-Final.pdf

    [8] Colorado River Drought Contingency Plan Authorization Act; https://www.congress.gov/116/bills/hr2030/BILLS-116hr2030enr.pdf

    [9] This update was prepared by the LegiSource board, not the original author.

    [10] These reductions and contributions are required pursuant to the 2019 Drought Contingency Plans and Minute 323 to the 1944 U.S. Mexico Water Treaty.

  • Have roads. Will travel.

    Have roads. Will travel.

    by Patti Dahlberg

    According to the Colorado Department of Transportation (CDOT) Historic Timeline featured on its website, CDOT has been around in some form or another since 1910 – amazingly, only about six years after the first automobile reportedly showed up in Colorado and about 15 years after the first sale of an American-made gasoline car. The introduction of the automobile in Colorado and the commitment to improving the roads “paved the way” for easier travel throughout the state. In many ways, the story of CDOT is the story of the state of Colorado opening its doors for all to explore and enjoy. With the founding of the department, Colorado soon became a tourist destination.

    Purportedly, the first automobile in Colorado appeared in 1904 in Louisville. The first reported trip up a mountain road made by an automobile seems to have taken place in June of 1910, when Francis Percy “Frank” Loveland, the grandson of Colorado pioneer businessman W.A.H. Loveland, of Loveland Pass and the city of Loveland fame, drove up an old carriage road (with a 2,000 foot elevation change) from the Denver-metro area to the top of Mount Falcon (near Red Rocks). The 24-year-old drove his Stoddard-Dayton touring car from Morrison to the Mount Falcon summit (elevation 7,851 feet) in about 20 minutes. An hour earlier, he had set another record by driving from the Capitol building to Morrison in only 29 minutes.

    So how did we get all these roads that take us just about anywhere we want to go to? It started in the late 1870s with the “Good Roads Movement.”  Through this movement, which lasted into the 1920s, farmers’ and bicyclists’ organizations advocated for the investment of state and federal money in improving roads outside of the cities. At the time, the rural roads were dirt or gravel, which meant mud in winter, dust in summer, and slow travel year round. Obviously, these roads were generally bad for bringing goods to market and, of course, for bicycling. And in the mountains, wagon roads could be difficult to navigate and unusable for large portions of the year. When automobiles appeared on the scene, the automobile lobbies wholeheartedly joined in the movement.

    Colorado’s Legislature created its first State Highway Commission in 1909, charging it with the responsibility of establishing a network of state primary roads. In 1913, the Legislature created a series of registration and licensing fees as a funding source for the improvement of the Commission’s proposed 4,380-mile primary road system. The fees varied from $2.50 to $10 (from around $40 to $160 in today’s dollars) depending on the vehicle’s horsepower. By 1915, Colorado’s proposed highway system grew to 5,844 miles, but only about 2,600 miles of those roads were constructed and only 196 miles of them were actually surfaced.

    By the time Congress passed the Federal Aid Road Act of 1916, which provided federal matching funds for state highway projects, Colorado had already been busy constructing roads and mountain passes. In fact, a new automobile road over Wolf Creek Pass was opened to traffic that same year. In 1917, the Legislature reorganized its State Highway Commission into the State Highway Department and passed legislation to create a state highway fund to distribute state and federal funds to develop and maintain Colorado’s highway system. By 1918, the Highway Department laid the first concrete road in the state, which ran from Littleton to Denver along Santa Fe Drive. A year later, Colorado was one of the first four states to pass a gasoline tax, one-cent per gallon (the average price at the time was 25 cents/gallon, $3.22 per gallon in today’s dollars), to raise revenue for a special road fund.

    In 1921, the Legislature, largely in response to the U.S. Bureau of Public Roads’ (BPR) willingness to provide federal aid to states, reshaped and expanded the bureaucracy of the State Highway Department. In 1922, Colorado voters deemed transportation important enough to approve $6 million in bonds for highway construction, which would be over $1 billion today. The BPR approved Colorado’s first federally aided road system, covering 3,332 miles. By 1929 the Colorado State Highway system had grown to 9,203 miles, and by 1938 it was almost 12,000 miles.

    Mountain Roads, Scenic and Historic Byways

    Colorado is home to 26 Scenic and Historic Byways, around half of which are also designated as National Scenic Byways and recognized for their outstanding scenic and historic attributes. Colorado has more national designations than any other state. In 1924, the State Highway Department completed the “Million Dollar Highway,” the Scenic Byway through the San Juan Mountains in Southwestern Colorado on U.S. 550. In 1927, the Mount Evans Highway was completed and opened for travel to an elevation of 14,130 feet, just below the 14,264-foot summit of the mountain. It remains the highest elevation for a paved highway in North America.

    The first automobile crossed Loveland Pass on September 29, 1929, and in that same month work on Trail Ridge Road – the highest continuous paved road in the United States, had begun. The Great Depression brought in federal work projects to help Colorado continue to construct and maintain its mountain highways, as anyone who has driven over Trail Ridge Road and read any of the signs knows. Between 1938 and 1940, Colorado completed the roads over Berthoud Pass (U.S. Hwy 40), Monarch Pass, and the original highway (U.S. Hwy 6) over Vail Pass. Gold prospectors may have brought skiing to the Colorado Rockies in the 1860s, but it was passable mountain roads that enabled it to become the popular winter sport that it is today.

    The boring of the westbound Straight Creek Tunnel (later to be named the Eisenhower Memorial Tunnel) through the Continental Divide to align I-70 near Vail with the existing U.S. Hwy 6 started in 1963 and finished in 1973. The eastbound bore of the Continental Divide tunnel opened in 1979 and was named in honor of former U.S. Senator and Colorado Governor Edwin C. Johnson. The combined tunnels are now officially known as the Eisenhower-Johnson Memorial Tunnel complex.

    And then there’s the crown jewel of Colorado mountain highways – I-70 through Glenwood Canyon. Construction began on “the final link” of west-bound I-70 through the canyon in 1980. Less than 15 miles long, the segment was completed in October of 1992 for around half-a-billion dollars. One of the biggest challenges CDOT faced was how to squeeze a four-lane freeway into a gorge barely wide enough to accommodate the existing two-lane highway and how to do so with minimal impact to the environment. CDOT’s solution was clever: construct two roadways, one nearly on top of the other. The final design features an elevated roadway with 40 bridges and viaducts spanning more than six miles between sections. Construction materials included 15 miles of retaining walls, two 4,000 foot tunnels, 150,000 newly planted trees and shrubs, 30,000 tons of steel, and 810,000 tons of concrete. Soon to be 30 years old, the Glenwood Canyon portion of I-70 is not only a beautiful stretch of road, but considered by many to be a modern marvel. The two-tiered elegantly sculpted highway through the Colorado River gorge remains a vital transportation corridor and a popular tourist attraction. The 12.5-mile engineering feat has received a presidential commendation and numerous design awards. It has been featured in books and in a museum exhibit on 20th century engineering achievements.

    Sources:

  • LegiSource is on Hiatus

    The Colorado LegiSource is taking a break for the next several weeks. We expect to resume weekly postings on September 8. 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.

     

  • GA Adjourns After Just 120 Days (Phew!)

    GA Adjourns After Just 120 Days (Phew!)

    by Julie Pelegrin

    For the first time in two years, the General Assembly adjourned May 11, 2022, on the 120th consecutive calendar day after it began on January 12th. While we may not consider this session normal by all standards (no one wants all-night debates as the new normal), it at least began and ended on time.

    The number of bills introduced falls within the normal range, as well. Legislators introduced 657 bills during the 2022 legislative session, which is comparable to the 623 bills introduced in 2021, 651 bills introduced in 2020, and 598 bills introduced in 2019, but pretty far short of the 721 introduced in 2018.

    That’s not to say everything ran on time throughout the 2022 session. With just one month left in the session, there were still 186 bills on a committee calendar in the house of introduction (i.e., those bills had not progressed through the legislative process beyond initial introduction). When the session dwindled down to two weeks there were still 152 bills in the first house committee, but with only a week remaining, just 39 bills remained in the first house committee. With six working days left in the session, the House and the Senate combined had 287 bills awaiting action on the calendar. They passed or killed 261 of them, leaving just 26 bills to die on the calendar (deemed lost or deemed postponed indefinitely) when the legislature adjourned.

    The term “working day” also took on a new meaning this session, mainly for the House of Representatives. At least twice, the House began debating bills on second reading on one day and continued those debates through the night and into the next morning. The first time – March 11-12 – they began debating bills on second reading at about 10:20 a.m. on Friday and didn’t wrap up until about 11:15 a.m. Saturday. The second time – May 9-10 – they began debating bills around 5:00 p.m., but this time they finished early – about 6:30 a.m. on May 10 – then came back for more at 11:00 that day and didn’t finish until about midnight. Overall, in the last five working days of the session, the House adjourned after 11:00 p.m. each night, and the Senate worked until at least 10:45 p.m. each of those nights except one. By the time the final gavel came down in the House at 11:35 p.m. on Wednesday, May 11 (10:55 p.m. in the Senate), legislators, staff, lobbyists, and anyone still watching on YouTube were ready for some sleep.

    That was the 2022 legislative session. What’s in store for the 2022 interim and the 2023 session?

    Beginning in July, 16 legislative interim study committees are authorized to begin meeting on a wide variety of topics including health insurance, school finance, jail standards, judicial discipline, transportation, water, and wildfires. Each interim committee is authorized to recommend bills to the Legislative Council. Because 2022 is an election year, the Legislative Council must meet no later than October 15 to decide whether to approve the bills for introduction during the 2023 legislative session.

    And speaking of elections, all of the seats in the House of Representatives are up for election in November. Eight of the incumbent representatives are term limited and cannot run again for their House seats; another 13 representatives are either running for another office or have decided not to run for other reasons. In the Senate, approximately half of the seats are up for election. Six of the incumbent senators are term limited and so will not be returning, and four others are either running for another office or have decided not to run for other reasons.

    So, when the Seventy-fourth General Assembly convenes on Monday, January 9, 2023, there will be at least 21 new representatives and 10 new senators. At least two of the persons elected to leadership positions in the House – Speaker of the House and Majority Leader –and at least one of the persons elected to a leadership position in the Senate – the Minority Leader – will be new to their positions. And that’s just the minimum amount of change that can be expected.

    For now, the legislative staff will quietly work to wrap up the work from the 2022 session, including preparing the 2022 C.R.S. for publication, writing final fiscal notes and summaries of the legislation that passed, and preparing the final appropriations report for the 2022-23 fiscal year; legislators will return to their districts to campaign and reconnect with their constituents; and everyone will hope for a little downtime before it’s time to prepare for the 2023 legislative session.

    Peace out, ya’ll.

     

    [1] Not surprising, the passage rate dipped to 51% with the onset of the pandemic in 2020 and an abbreviated legislative session lasting just 84 days.