Colorado LegiSource

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

Category: Bill Drafting

  • The Office of Legislative Legal Services: More Than Just Bill and Amendment Drafting

    by Sharon Eubanks

    With the 2019 legislative session under way, legislators have already been interacting with the staff of the Office of Legislative Legal Services for their bill and amendment requests.  But the Legislative Legal Services staff, comprised of attorneys and other professional staff, provides a variety of written materials and services to legislators in addition to their bill and amendment drafting needs.  We encourage legislators to learn more about and make full use of the products and services we can provide.  Please visit our web page at https://leg.colorado.gov/agencies/office-of-legislative-legal-services.

    Legislative Legal Services is the General Assembly’s nonpartisan legal staff agency. As legislative lawyers, we maintain 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 interests of any legislator. However, when working individually with legislators, we 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.

    In addition to our primary function of drafting bills, resolutions, and amendments, the Legislative Legal Services 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 soon as practicable, time permitting, and on a first-come, first-served basis. Examples of ancillary materials available 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.

    Our office also provides written legal opinions, including written legal opinions on issues relating to pending legislation. We hold legal opinion requests in strictest confidence. We will not release a written memorandum to other persons without the permission of the legislator who requested it. And 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 legislative staff. Examples of the documents and tasks that Legislative Legal Services 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 his or her 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’s something we can provide, we will do so.

    The Legislative Legal Services staff is ready to provide the services and support to help the members of the Seventy-second General Assembly have a productive and successful legislative session in 2019. We encourage legislators to utilize the Legislative Legal Services staff for all their legislative needs, not just for bill and amendment drafting.

  • 2019 Bill Request Deadlines Quickly Approaching!

    by Patti Dahlberg

    The 2018 elections are over and the next legislative session convenes on Friday, January 4, 2019.  The constitution, legislative rules, and a looming 120-day legislative session do not allow new and returning legislators much time for rest and relaxation between the November election and the January session. Bill deadlines require legislators to complete the bulk of bill drafting in December and well before the first day of the legislative session.* And this year, due to the earlier convening date (See “Surprise! The 2019 Legislative Session Convening a Week Earlier”, posted September 20, 2018,) all bill deadlines are earlier than normal!

    Returning legislators have until Monday, November 26, 2018, to submit their first three bill requests to the Office of Legislative Legal Services (OLLS). Newly elected legislators have a little more time — but not much — to get their session legs. They must submit their first three bill requests to the OLLS by Monday, December 10, 2018. Legislators who have already submitted bill requests, or those who do so as soon as possible, allow drafters to start crafting their bill drafts earlier, which can subsequently help identify and fix many drafting issues long before the first day of session.

    What all legislators need to know about requesting bills [Joint Rule 24(b)(1)(A)]:

    • The Joint Rules allow each legislator up to five bill requests each session. These five bill requests are in addition to any appropriation, committee-approved, or sunset bill requests that a legislator may choose to carry.†
    • This year, to reach the five bill request limit within session deadlines, a legislator must submit at least three of those bill requests to the OLLS by November 26, if the legislator was a member of the 71st General Assembly, or by December 10, if the legislator was newly elected to the 72nd General Assembly on November 6. In addition, all legislators must submit the last two (of five) requests to the OLLS by Thursday, January 10, 2019. †
    • If a legislator submits fewer than three requests on or before the November 26 or December 10 deadline, he or she forfeits the other one or two unrequested bills that were due by that date.†

    When submitting bill requests on deadline dates, legislators should be prepared to provide sufficient drafting information so that the drafters can immediately start drafting. The legislator will also need to decide which of these requests will be filed by Friday, December 28, 2018 for introduction on the first day of session. And for newly elected legislators, keep in mind that although the legislative rules allow you more time to submit your first three bill requests than a returning legislator, these rules do not give you, as a new legislator, more time to have your bills drafted. You will actually have less time for bill drafting!

    If possible, every legislator — even new ones — should try to submit at least one bill request ASAP. Don’t worry about having all the information or all the answers at this point. The bill drafting process allows for bill drafters to ask questions and help you find information. The drafting process can also allow potential issues or problems to rise to the surface making it easier for the legislator to decide whether his or her idea is “workable.” If it becomes apparent that a request isn’t working, the legislator may be able to withdraw it and replace it with a new request, as long as he or she makes that decision on or before the November 26 deadline for returning members or the December 10 deadline for new members.

    Legislators should consider submitting more than the minimum three requests by the earlier request deadline. By doing so, a legislator may preserve the flexibility to withdraw and replace at least one of his or her requests after the early request deadline without losing a request. For example, if a legislator submits only three requests by the early deadline and later withdraws one of them, the legislator forfeits the withdrawn bill request because the joint rules allow a legislator to make only two bill requests after the November 26 or December 10 deadline, whichever is appropriate, and before the January 10 request deadline. On the other hand, if a legislator submits four bill requests by the earlier request deadline and later withdraws one of them, the legislator still retains his or her three bill requests that met the early request deadline. In addition, the legislator still can submit the two requests that are allowed after the early bill request deadline — for a total of five bill requests.

    * This year every legislator’s first bill must be filed by Friday, December 28, 2018, to be ready for introduction on the first day of the legislative session. Every Senator’s next two early bills must be ready for introduction by the 5th legislative day (Tuesday, January 8), and every Representative’s next two early bills must be ready for introduction by the 8th legislative day (Friday, January 11).

    † A legislator can ask permission from the House or Senate Committee on Delayed Bills, whichever is appropriate, to submit additional bill requests or to waive a bill request deadline.

  • When More is More

    by Jery Payne

    A United States Court of Appeals’ opinion begins, “For want of a comma, we have this case.” The facts are simple. Delivery drivers employed by a Maine dairy company were suing for overtime. The dairy wasn’t paying them overtime, which they believed the law required.

    Whether the law required it was not so simple. The law states that the overtime protection law does not apply to:

    The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

    (1) Agricultural produce;

    (2) Meat and fish products; and

    (3) Perishable foods.

    The intent appears to be that overtime shouldn’t be required for jobs when dawdling might cause food to perish. The court was wrestling with whether this exemption covers delivery drivers.

    Is the phrase packing for shipment or distribution of one item or two items on the list? In other words, which of the following is exempted?

    • Packing for shipment and packing for distribution; or
    • Packing for shipment and any kind of distribution.

    The dairy argued that distribution of should be read as one item on the list. If the distribution of perishables is read as one item on the list, then the law doesn’t require the dairy to pay the delivery drivers overtime. But if the whole phrase packing for shipment or distribution of is meant to be read together, then the dairy owed the delivery drivers a lot of money.

    The statute has at least one of two grammar errors. Notice that the list starts with a series of gerunds, which is a five-dollar word for a noun created by adding “ing” to the end of a verb: canning, processing, preserving, freezing, drying, marketing, storing, packing. And distribution of isn’t a gerund. Because every other item on the list is a gerund, the grammar indicates that the phrase was intended to be one item, packing for shipping and distribution of. But if this is true, then the statute is missing the word “or” before the last item of the list. It should read marketing, storing, or packing for shipment or distribution of. And it doesn’t. So the statute should have been written in one of two ways:

    • …marketing, storing, or packing for shipment or distribution of:
    • …marketing, storing, packing for shipment, or distributing of:

    These dueling errors bedeviled the court, so it gave up trying to parse the sentence. It decided that the ambiguous exception should be read narrowly and ruled that the dairy had to pay the delivery drivers.

    As I mentioned, the court pointed out several times that an Oxford comma would have solved the issue. If the statute had read storing, packing for shipment, or distribution of perishables, it would have been clear that the statute covered the delivery drivers.

    So using the Oxford comma is good advice. We aim to use it in the Colorado Revised Statutes.

    But what if the legislature hadn’t intended to cover the delivery drivers? How could we draft the statute so that it is clear? What if we repeated the preposition of?

    The canning of, processing of, preserving of, freezing of, drying of, marketing of, storing of, or packing for shipment or distribution of:

    (1) Agricultural produce;

    (2) Meat and fish products; and

    (3) Perishable foods.

    Now the statute is clear.

    I bet I know what a lot of you are thinking: “We don’t need all those extra prepositions, of. Just don’t forget the disjunctive, or.” No, I suppose in this case we didn’t need the extra prepositions. But they do help. And what about the following statute[1] that authorized the defendants to move a case to federal court:

    Any officer of the United States or any agency thereof …

    Can any officer of any agency move the case to federal court? Or does the defendant have to be the agency itself? In other words, the list was ambiguous because it could be read either of these two ways:

    • An officer of the US or an officer of an agency of the US; or
    • An agency of the US or an officer of the US.

    The United States Supreme Court settled this issue by deciding that an officer of an agency could move the case. They decided that Congress meant an officer of an agency. If that is the correct intent, repeating the preposition of would have solved the issue:

    Any officer of the United States or of any agency thereof …

    I know that people will be tempted to dispense with the repetitious preposition in a list, but repeating those prepositions does remove ambiguity. My advice is to repeat those prepositions when clarity is at stake.

     

    [1] Hat tip to Bryan Garner from his Advanced Legal Drafting Course.

  • Who’s Afraid of the Origination Clause?

    by Nicole Myers

    Senators, has this ever happened to you?  You have a great idea for a bill to create a tax credit. It will provide assistance or incentives to deserving Coloradans who satisfy the criteria to claim it. You submit your bill request to the OLLS at your earliest opportunity, and within a day or two, an OLLS attorney calls you to discuss your request.  But before you can even explain your great idea, the attorney respectfully tells you that because your bill creates a tax credit, it is considered revenue raising and therefore should start in the House of Representatives.

    Now hold on just a minute.  You are a State Senator! Why is an OLLS attorney telling you that your bill, which was your idea, should start in the House?  What’s with this revenue-raising thing…did the OLLS make this up? And, how can a tax credit, which is revenue reducing, be considered a bill that raises revenue?

    Senators, your OLLS attorney gave you this unhappy news because Section 31 of article V of the state constitution requires that “[a]ll bills for raising revenue shall originate in the house of representatives, but the senate may propose amendments, as in the case of other bills.” This requirement is known as the “Origination Clause” and was likely modeled after a similar provision in the United States constitution.

    You may be wondering why the Colorado and United States Constitutions require bills that raise revenue to originate in the House of Representatives. The right to introduce money bills is an ancient privilege of the House of Commons, the lower house of the British Parliament. This privilege was awarded the lower house in the belief that the House of Lords, a permanent, hereditary body created by the king, would be more subject to influence by the crown than the House of Commons, a temporary elective body.  They thought it was more dangerous to let the Lords impose new taxes; better to leave that to the body elected by the people.

    A substantial number of state constitutions and the United State constitution maintain the privilege of the “lower” house to introduce money bills. While the limitation regarding revenue-raising bills is a remnant of Parliament’s struggles with the Crown, in modern times it expresses a preference for keeping the power to tax as close as possible to those subject to the tax. The House of Representatives, deemed the “lower” house, is presumed to more directly represent the people both because lower houses are customarily larger than their corresponding upper chamber and their membership is usually subject to election more frequently.

    There are many Colorado cases in which the court has assessed the constitutionality of bills under the Origination Clause, and there have been various interpretations of the phrase “bills for raising revenue” as stated in both the Colorado and United States Constitutions. In Colorado, the courts have determined that a bill for raising revenue “is one which provides for the levy and collection of taxes for the purpose of paying the officers and of defraying the expenses of government.” The courts have also held that “[a] bill designed to accomplish some purpose other than raising revenue, is not a revenue-raising measure.  Merely because as an incident, to its main purpose, it may contain provisions, the enforcement of which produces a revenue does not make it a revenue measure.”

    If you are thinking “but the General Assembly can’t pass a bill for the levy and collection of taxes for any purpose,” you are one step ahead of me. Today, the accountability to taxpayers for tax increases that the Origination Clause provides is largely superseded by the Taxpayers’ Bill of Rights. TABOR requires voter approval for any legislation that increases taxes, so now the voters directly decide whether taxes should be increased. (Interestingly, a bill that includes a referendum clause asking voters to increase or decrease state general fund revenue is considered a bill for raising revenue, even though voter approval is required.) So why are OLLS attorneys still bothering you with e-mails or phone messages about revenue-raising bills?

    The Colorado Attorney General’s Office has issued several opinions regarding bills for raising revenue. One of these opinions states that a bill that would have the obvious effect of decreasing collected revenues is still a bill for raising revenue.[1] The Attorney General’s Office determined through its research that bills for raising revenue “means bills which provide for the levy and collection of taxes. A bill levying taxes may cause a tax to decrease as well as increase.  Accordingly, art. V (section) 31 precludes the senate from introducing measures that decrease state taxes”. For this reason, the OLLS advises members of the General Assembly that a bill that affects the amount of general fund revenue collected by the state is considered a revenue-raising bill and should be introduced first in the House. Bills that fall into this category include income tax credits, income tax exemptions, bills to decrease any state tax, and bills that seek voter approval for an increase or decrease in any state tax or approval for the creation of a new state tax. Bills that are not deemed to affect the amount of general fund revenue collected by the state and therefore can be introduced in the Senate include bills that delegate authority to local governments to levy local property taxes, bills that appropriate money from the general fund, and bills that create, increase, or decrease a fee or toll as compensation for the use of government facilities or for services provided by the government.[2]

    Although the OLLS does its best to advise Senators of the provisions of section 31 of article V of the state constitution, Senators have started many revenue-raising bills in the Senate. There is now precedent for these bills being enacted after starting in the Senate, and these bills are presumed to be constitutional. To our knowledge, no one has challenged any of these revenue-raising bills in court based on a violation of the Origination Clause; therefore, the OLLS does not know whether a court would give more weight to the constitutional provisions of the Origination Clause or the presumption of constitutionality afforded every measure enacted by the General Assembly. Regardless, it is interesting to note that one Speaker of the House within recent memory, to protect the House’s authority to introduce revenue-raising bills, refused to introduce in the House any Senate bill that was revenue raising. While a Senator may decide that he or she is not going to let the Origination Clause stop him or her from introducing a Senate Bill that affects the overall amount of revenue coming into the state general fund, the House of Representatives may use the Origination Clause to prevent the bill from proceeding in the House.

    As all Colorado State Senators and Representatives know, the OLLS will never tell a member of the General Assembly that he or she cannot introduce a bill for any reason. So if you are a Senator and are ever advised that your bill is revenue raising and, pursuant section 31 of article V of the state constitution, should start in the House, it is just the OLLS reminding you of the requirements of the Origination Clause. We do this in an effort to protect the constitutionality of your bill, maintain the authority of the House of Representatives to introduce revenue-raising bills, and preserve the integrity of the laws and traditions that govern the legislative process in Colorado. We leave it to you to determine whether to be afraid!

    [1] For a list of specific Attorney General Opinions discussing article V (section) 31, please see section 8.1.5 of the OLLS Drafting Manual.

    [2] For a more thorough discussion of bills that are and are not considered revenue raising, please see sections 8.1 and 8.2 of the OLLS drafting manual.

  • What’s with All the Extra Changes in My Bill?

    by Bethanie Pack

    Sometimes a seemingly quick fix in a bill, such as changing just a few words or extending a repeal date, results in a draft that was longer than anticipated with more changes than originally asked for.

    Why?

    Under the Revisor of Statutes’ authority granted in sections 2-2-802 and 2-5-103 C.R.S., the Office of Legislative Legal Services (OLLS) makes several on-going, non-substantive changes to modernize, maintain consistency, and improve the readability of the statutes. Drafters add these changes to bills prospectively, as the opportunity arises, rather than making a global revision change in the database, because making all these changes at once would 1) introduce a lot of opportunity for error; 2) potentially and unintentionally change the law substantively in some scenarios; and 3) take a ton of additional time to proofread the accuracy of all of the changes.

    Some examples of these additional non-substantive changes a legislator may see in a bill include:

    Short Titles and Standardized Language

    This article shall be known and may be cited as The short title of this article 30 is the “Limited Gaming Act of 1991”.

    Prior to Before its repeal, the department of regulatory agencies shall review the licensing functions of the secretary of state are scheduled for review in accordance with…

    Formatting of Internal References

    …the provisions of this article article 30.

    …described in paragraph (a) of this subsection (1) subsection (1)(a) of this section as the…

    Removing “C.R.S.” from a Section Number

    …the provisions of section 24-5-101; C.R.S.;

    “Which” to “That”

    …the administration of similar laws which that may be in effect in other states or countries;

    “Such” to “The”

    …upon such the sheriff’s or peace officer’s request…

    Gender Neutralization

    …in the performance of his or her duties…

    “Moneys” to “Money”

    …shall invest the moneys money in the…

    People First Language

    Mental retardation Intellectual and developmental disabilities theory and rehabilitation…

    …being a common drunkard person with an alcohol use disorder…

    One might think that some of these changes are simple enough to just “find and replace” them all in the statutes. Two clicks and done. Right?

    Unfortunately, it’s not that simple or easy.

    A change may seem straightforward at first, such as gender neutralizing, where the drafter or the Revisor could just add “or she” to every place in the statutes where it says “he”. But, since the intent of these changes is to modernize and improve readability, it may be better to clarify the actor rather than just add “or she” to the statute. “He shall authorize…” becomes “The commissioner shall authorize…” rather than “He or she shall authorize…”. This obviously requires interpretation that a computer simply cannot do.

    Because of this and the statutory directive to write in “plain, nontechnical language and in a clear and coherent manner using words with common and everyday meaning which are understandable to the average reader,” section 2-2-801 C.R.S., the OLLS continuously updates and modernizes the laws as they are amended for substantive purposes, which results in unanticipated additional changes in a bill.

    Under most circumstances, the OLLS makes these changes in a bill as the opportunity arises. However, these changes cannot be made in uniform laws or compacts or when it would conflict with federal law.

    So, with each extra, unanticipated change in a bill, the general assembly is doing its part in the slow but steady process of bringing the 20,000+ pages of statutes into the 21st century.

  • Mother May I? No. You May Not.

    By Jery Payne

    Imagine you are a judge who is hearing a case. The case involves a 16-year-old applying for his first driver’s license. He fulfilled all the requirements to receive a driver’s license, but the clerk at the DMV counter refused to issue one. The clerk didn’t explain the refusal other than to point out that Colorado law says the following:

    42-2-104. Licenses issued – denied. (1) Except as otherwise provided in this article, the department may license the following persons in the manner prescribed in this article:

    (c) Any person sixteen years of age or older who has not reached his or her twenty-first birthday, as a minor driver.

    The statute that authorizes the issuance of licenses says that the clerk “may” issue licenses. “May” is understood to mean that the clerk is authorized, but not required, to issue the licenses. “Therefore,” the clerk explains, “I don’t have to issue the license. Bye, now.”

    It turns out that the applicant had been dating the clerk’s daughter, but they had recently broken up. You suspect the clerk is punishing the applicant.

    As the judge, what do you do? The clerk’s explanation is more or less a correct understanding of the statute. The word “may” gives authority but does not normally impose a duty. Yet the clerk’s decision is clearly an abuse of authority. Do you apply the statute as written? Or do you hold that the statute requires the clerk to issue the license? Do you interpret “may” to mean “shall”?

    Now, imagine you are the drafter writing this statute, and you only have the words “shall” and “may” in your drafter’s toolbox. The goal is to grant authority to the DMV to issue licenses, but you realize you might not want to use the word “shall” because one of the goals is to make sure the DMV also has the ability to deny licenses to unqualified applicants.

    Another approach may be to focus on the applicant: “A person shall submit the following.” At first this seems to make sense, but then you realize that the law now requires people to submit the appropriate paperwork even if they don’t want a driver’s license. So this doesn’t quite work.

    A third approach may be to focus on the applicant’s age: “An applicant shall be at least sixteen years of age.” At first, this also makes sense, but then you realize that you have just given people a duty to be a certain age. The applicant can’t control his or her age, so saying he or she has a duty to be at least sixteen years of age is a little weird. And this approach has caused quite a few problems. What you really want to say is that an applicant needs to be a certain age to be licensed. Therefore, these approaches that use “shall” don’t quite work.

    At the same time, the word “may” can lead to a case such as the one imagined with the power-hungry clerk denying licensure to a qualified applicant. The word “may” doesn’t quite capture the goal, which is both for the DMV to issue licensees to qualified applicants and to make sure that applicants are qualified before being issued a license.

    If neither “shall” nor “may” quite captures the intention, then you face a conundrum. Go back and read the statute. It is actually quite clever in how it communicates the intention with words that don’t quite work.

    This is where the word “must” helps. Add this word to your toolbox. First, start with the DMV’s duty to issue licenses: “The department shall issue driver’s licenses to qualified applicants.” Now it is clear that the department has a duty to treat everybody fairly. Then, add a requirement (but not a duty) that the applicant meet the desired standards: “To be qualified, the applicant must be at least sixteen years of age.” The word “must” communicates a requirement, which is what the statute is trying to get at.

    This is why the General Assembly added the word “must” to the drafter’s toolbox. “Must” doesn’t mean a person has a duty; it means something is necessary, and this, it seems to me, is exactly what the legislature meant when it enacted this statute.

    Duprey v. Anderson is an actual case where a statutory “may” put the court in another type of conundrum. The case dealt with the purging of voter rolls. The statute provided for voter rolls to be purged of the names of people who didn’t vote in the last election. It also said that the county clerk “may” mail notices to purged voters.

    Upon the purging of the names of registered electors who failed to vote in the preceding general election, the county clerk may mail postal cards to all such purged electors informing them that their names have been purged from the registration books of the county clerk for failure to vote at such general election.

    The court faced the choice of declaring the statute unconstitutional or interpreting the “may” to mean “shall.”

    Here’s why the constitution requires notice: Without notice, the person probably wouldn’t know that voting again means reregistering. The person could show up on election day and, because the person isn’t registered, be denied the ability to vote. The constitutional requirement of due process requires the government to give notice to a person when it acts in a way that may affect his or her rights. Otherwise, the person will not know to take steps necessary to avoid the loss of a right.

    Unfortunately, the statute in this case used “may.” The statute allowed the clerk to decide not to send the notice, so it didn’t actually require the person be notified. To avoid the constitutional issue, the court chose to interpret the word “may” to mean “shall.”

    Using the word “may” normally means that the affected person or entity is authorized to do something. It grants discretion. It shouldn’t be used for something that is necessary. Both the driver’s license and voter roll statutes used “may” for a requirement.

    When working on a bill, the word “may” sometimes makes the stakeholders happy, but it might also put a court or state agency in a quandary. The court or agency might end up, in essence, rewriting the statute to make it work, and this can lead to unanticipated results.

    So what’s the takeaway from these two examples? If the intent of a statute is to require a person or entity to do something, the statute should not use the word “may.” If the statute imposes a duty, it should use the word “shall”; if it imposes a requirement, it should use the word “must”; and if it simply authorizes an action, it should use the word “may.” The drafter has good reason for suggesting the bill use “must” or “shall” instead of “may.”

  • Does My Bill Really Enact a Compact?

    By Thomas Morris

    Drafters are often given a draft bill that purports to be a compact — sometimes called an interstate compact. However, in at least some instances, it is not a compact — it is a model law that the proponents wish to invest with the gravitas of a compact. They are very different things that need to be treated very differently.

    Compacts

    The states’ ability to bind themselves to a compact is governed by Article I, Section 10 of the United States Constitution:

    No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. (emphasis added)

    A good example of a compact is the Colorado River Compact, which is codified in article 61 of title 37, C.R.S. This compact was entered into by the states of Arizona, California, Colorado, New Mexico, Nevada, Utah, and Wyoming and was approved by Congress. It apportions the water of the Colorado River among the seven states. The statute codifying the compact quotes the compact in its entirety, including the provision indicating that it becomes effective only after at least six of the compacting states’ legislatures approve it and the listing of the signatures of the compacting states’ authorized representatives.

    A fully executed compact is, simultaneously, three things (usually):

    1. A contract between at least two states, typically negotiated by designees of the governors or other official representatives of the compacting states (not a private organization). If a compact is violated, the compacting states’ exclusive litigation remedy is to sue each other directly in the United States Supreme Court. Individuals have no standing to enforce a compact unless the compact explicitly or impliedly provides a private right of action.
    2. A state law enacted by the contracting states’ legislatures. Because a compact is a contract, and a contract cannot be unilaterally modified by any of the contracting parties, if the bill is actually a compact, it needs to be enacted without any unauthorized changes. Look at, e.g., most of the parts in article 60 of title 24, C.R.S., where most compacts (other than with regard to water) are codified. Typically there is a C.R.S. section that states a short title (“‘This part 16 is known as the Interstate Corrections Compact’”) and another C.R.S. section that reproduces the compact as is—warts and all. There should be either a direction to the governor or a designee to enter into the compact or a portion of the compact that includes the signatures of, or other acknowledgement of execution by, the compacting states. However, sometimes a compact will specify that it becomes effective if it is enacted in “substantially” identical form by the compacting states’ legislatures. This allows the General Assembly to amend the compact, but it is unclear when the “substantially identical” standard would be violated.
    3. A federal law. A compact that increases the power of states at the expense of the federal government cannot take effect under the federal constitution unless Congress approves it. This element is not required if the compact does not increase the states’ power by encroaching on federal authority, as determined by the United States Supreme Court in the case of Virginia v. Tennessee, 148 U.S. 503.

    A prominent example of a compact between states that Congress did not approve is the 1861 Constitution of the Confederate States of America. With this example, one can see why the Founders were concerned about the states entering into at least some types of agreements among themselves.

    Model Laws and Uniform Laws

    In contrast, at least some of the documents given to drafters that purport to be compacts are really just model laws. There has been no contract between the states nor any plan to enter into one. The proponents are organizations or individuals that would benefit from having similar laws in various states, not the states themselves. The laws are enforceable by parties other than the enacting states. The laws are enacted only in more or less similar form. And there has been no approval by Congress nor any plan to get it.

    Compacts are distinct from both uniform acts, which have been proposed by the Uniform Law Commission and approved by the American Bar Association, and model laws, which are produced by non-governmental bodies of legal experts. While some of the legal results are the same – state law is identical or virtually so in more than one state – the subject matter of the two types of laws (model and uniform laws versus compacts) fundamentally differs and the process of formulating and enacting the two types of laws is usually also quite distinct.

    So it is incumbent on the drafter to figure out, precisely, what he or she has been given before the bill can be finalized. If it’s truly intended to be a compact, even if the other two elements – contract and congressional approval – are not yet in place, it should generally be codified as a new part in article 60 of title 24. And unless it specifies that it can be amended, so long as it is enacted in substantially the same form by all the compacting states, the document should not be altered in any way, including by amendment. If this is the case, the drafter and contact people should make that very clear to the bill sponsor and any other legislator who may try to amend it.

    If the document is really just a model law, it should not be codified as a part in article 60 of title 24, and the bill sponsor or any other legislator may make any changes they choose. But please don’t call it a compact!

  • The Rise and Fall of 1,100 Cubic Feet of Old Files

    by Debbie Haskins

    A few years ago, the Office of Legislative Legal Services (OLLS) came to the startling conclusion that we might be the unlucky stars in a disturbing episode of “Hoarders.” We had boxes of files piled up and overflowing the OLLS’ territory in the Capitol sub-basement. We required employees to go downstairs in pairs to ensure no one was lost in an avalanche.

    What were these files? Where did they come from? And how did we end up with so many?

    Legislators might not realize it, but every time a legislator asks an attorney in the Office of Legislative Legal Services (OLLS) to draft a bill or write an amendment, the attorney creates a drafting file for that legislator. These drafting files include background documents, research materials, and drafts of bills, resolutions, and amendments, some of which are never introduced. The bulk of the materials in the OLLS drafting files are bill drafts and redrafts, including handwritten notes by the OLLS editors and attorneys about proofreading corrections, word choice, and grammar.

    In 1993, the Executive Committee (the leadership of the General Assembly) adopted a records retention policy that required the OLLS to keep the legislators’ drafting files indefinitely. In 1993, the General Assembly also amended section 24-72-202 (6.5)(b), C.R.S., of the Colorado Open Records Act (CORA) and section 2-3-505 (2)(b), C.R.S., to define the OLLS drafting files as confidential “work product,” which means the OLLS will not allow a member of the public access to a drafting file unless the legislator on whose behalf the file was created gives express permission.

    So, starting in 1993, the OLLS asked legislators when they left the General Assembly to sign a form telling us what the OLLS should do if a member of the public asked to see their drafting files. Using the form, legislators could waive the work-product privilege for all of the drafting files created by the OLLS in their name or they could refuse to give permission for members of the public to look at any of their drafting files. Since most legislators did not know what was in their drafting files because they didn’t create the files, legislators often did not know how to respond to the waiver form. Many simply never filled out the form. And the reality was that the OLLS actually never received requests under CORA to see the drafting files.

    Meanwhile, the drafting files began to accumulate. Due to a lack of space in the Capitol sub-basement where the OLLS stores extra files and due to the conditions in the sub-basement, which are less than ideal (think dust, water leaks, and beetles), the OLLS started transferring older drafting files to State Archives. Recently, we discovered that State Archives had over 1,100 cubic feet of OLLS drafting files, including some dating back to the 1930s. If you stacked those boxes of drafting files end to end, that’s the equivalent of three and a third football fields or almost three and a half times the height of the Colorado State Capitol building!

    Also, questions began popping up concerning implementation of the records retention policy.  For instance, what if a legislator died? Could someone else waive the work-product privilege? What if a former legislator moved and we couldn’t find her? Should the drafting files be preserved as evidence of legislative intent? Did these drafting files have any historical value? Why were we keeping files in perpetuity when they were seldom opened and couldn’t be shared without permission from the legislator?

    Faced with all of these questions, the OLLS did what any good legislative service agency would do – we asked our legislative oversight committee to do a study!

    After two years of research and investigation, a committee field trip to the sub-basement to see the dust, bugs, water leaks, and lack of space for the OLLS drafting files, and an examination of their own drafting files, the members of the Committee on Legal Services (COLS) concluded that the drafting files did not need to be kept forever on shelves in the sub-basement or in State Archives.

    (l to r) Senators Kagan, Scott, and Scheffel check out the storage conditions for legislator drafting files on a fieldtrip to the subbasement last fall. (photo courtesy of Jeff Roberts, Executive Director, Colorado Freedom of Information Coalition)

    The COLS determined the following:

    • A privilege held by a deceased legislator cannot be waived by someone else since the privilege dies with the legislator;
    • The practice of asking legislators to make blanket waivers of the work-product privilege protecting drafting files that they did not create does not make sense and should be discontinued;
    • The drafting files do not need to be preserved as evidence of legislative intent because the contents only reflect draft legislation before introduction, only apply to one legislator, and do not represent what a legislative committee or the legislative body intended when it passed a bill; and
    • There is minimal long-term historical value to the drafting files. In fact, one legislator quipped that we should destroy the old files in a bonfire à la The Bonfire of the Vanities.

    Ultimately, the COLS recommended to the Executive Committee that the OLLS drafting files should be kept for eight years and files older than eight years, including those at State Archives, should be destroyed—not by fire but by shredding. The Executive Committee voted unanimously on March 3, 2017, to revise the Retention of Records Policy for Records of the OLLS as recommended by the COLS.

    Why did the COLS select eight years for the retention time?

    • It mirrors the length of term limits for individual legislators; and
    • That’s the approximate amount of room the OLLS has in the sub-basement for storage.

    As a result of the new policy:

    • The OLLS will work with State Archives in the 2017 interim to shred the 1,100 cubic feet of old drafting files currently saved at State Archives;
    • The OLLS will shred drafting files after they have been stored for eight years;
    • The OLLS will stop asking legislators for blanket waivers of work-product privilege for their drafting files; and
    • The OLLS will handle requests by the public to access an existing drafting file on a case-by-case basis, leaving it up to the legislator to determine whether to waive the work-product privilege.

    And that…as Paul Harvey used to say on the radio…is the rest of the story.

  • A Legislator’s Guide to Creating Cash Funds

    by Ed DeCecco

    “How do I love thee [cash funds]? Let me count the ways.” Elizabeth Barrett Browning’s Sonnet 43

    Ms. Browning may not have written her sonnet about the Colorado General Assembly’s affection for cash funds, but if she’d seen how many cash funds exist in the Colorado Revised Statutes, she might have been tempted to do so.

    While I’m no poet, I can count. So let me count the ways that the Colorado General Assembly creates the cash funds that it loves and, along the way, include a brief description and my thoughts on each.

    One. Cash funds created for fee revenue.

    Sometimes a program or particular service will be funded with a fee that is deposited into a cash fund. For example, the fees charged to enter a state park are deposited in the parks and outdoor recreation cash fund, and that money is appropriated to the Division of Parks and Wildlife in the Department of Natural Resources for state park operations.

    This is an instance when a cash fund is critical. If there was no cash fund, then the fee revenue would be deposited into the general fund and used to pay for general government services, instead of the particular program for which it was created. Not only would the program lack funding—oops!—but the fee would lose an essential characteristic that distinguishes it from a tax. Presuming that it was created without prior voter approval, that could raise a constitutional issue. (Hint: The provision rhymes with “neighbor.”)

    Two. Cash funds created for gifts, grants, or donations.

    As an alternative to creating a fee, the general assembly may empower a department to accept and expend gifts, grants, or donations to be used for a particular purpose, and that money will be deposited into a cash fund. These gifts for a designated purpose are a type of money called custodial funds. Custodial funds are not money that a person earns while incarcerated, but rather, as the Colorado Supreme Court explained in Colorado General Assembly v. Lamm, they are “funds not generated by tax revenues which are given to the state for particular purposes and of which the state is a custodian or trustee to carry out the purposes for which the sums have been provided.”

    So, if an individual gave the state $1,000,000 for Ed. funding, that money cannot be deposited into the general fund and used to pay for the general operations of the state. Instead the department is required to give it to me or other men named Ed, or, perhaps, use it for the less-fun, but worthier purpose of funding a particular education program. In either case, the money will be separately accounted for, and the department will only be permitted to spend it for designated purposes. Also, unlike state money, custodial funds are not subject to appropriation and are typically excluded from state fiscal year spending under TABOR. With all of these considerations, there is no reason to create a cash fund just for your gifts, grants, and donations, other than to reiterate a clever program name.

    Three. Cash funds created to spend general fund revenue.

    Many times a new program will be created without specifying a particular source of funding. In these instances, the likely place from which the money will be paid is the general fund. But instead of appropriating the money directly from the general fund, sometimes the money is transferred or appropriated to a cash fund and then appropriated to the department for the intended purpose. Maybe there is a reason for this funding two-step, such as setting aside money from the current year to be used in future years, but often I can’t tell what it is.

    Unfortunately, this mechanism obscures how state money is being used (and gives our accountants headaches). If the money is transferred to the cash fund, the money will appear in the annual appropriations bill under the cash funds appropriation column, even though it is actually general fund revenue. Or there may need to be two appropriations in the annual appropriations bill: an appropriation from the general fund to a cash fund and then an appropriation of reappropriated funds from the cash fund to grant the department the authority to spend the money. Given that you’ve probably glazed over just reading my description of how this works, you would likely agree that it would be much more straightforward and transparent to directly appropriate the money from the general fund and skip the cash fund in this instance.

    Four. Cash funds created to spend fees; gifts, grants, or donations; and general fund revenue.

    Often a program will be primarily funded by fees that are deposited into a fund, but the cash fund will also include gifts, grants, or donations and any other money that the general assembly may appropriate or transfer to the fund. I can’t decide if this is a result of bill drafters being thorough or if it indicates the optimistic nature of legislators. Either way, I’m not sure how often the public or the joint budget committee exercises its power to supplement the fee revenue. A cash fund is still appropriate in this case because of the fee revenue. Keep in mind, though, that gifts, grants, or donations are not subject to appropriation, and, therefore, the authority to spend the fee revenue should differ from the gifts, grants, or donations.

    Five. Cash funds created for taxes.

    While taxes are generally designed to raise revenues to defray the general expenses of government, it has always been somewhat fashionable to treat our state taxes like fees by crediting the tax revenue to a cash fund and then limiting the uses. This may be done to comply with the initiated or referred measure (for example, the tobacco tax cash fund was created to facilitate the constitutionally mandated distribution of the tobacco taxes created by Amendment 35) or because the underlying activity being taxed seems to demand that the derivative revenue be used accordingly (for example, a portion of severance taxes are deposited in the local government severance tax fund). In these instances, which are relatively infrequent, a cash fund may be necessary for administrative reasons.

    So, there you have it, five ways the general assembly creates cash funds. And while it is always fun for us bill drafters to create one, perhaps they could be created less often when they are not legally necessary. To help remind you of this, I’d like to conclude this article with a little poem. (While I said I’m not a poet, I’m not afraid to compose a doggerel verse or two.)

    Roses are red, violets are blue, cash funds are awesome, but maybe we should have less of ’em.

  • Minding Your Strike Types and Small Caps

    by Jessica Wigent

    Every bill, no matter the content, has a few things in common: each has numbered sections and each has at least one amending clause.

    The amending clause is not only an important tool, it’s also the bill sponsor’s friend. It announces how a bill plans to change the law and illustrates how the bill adds new language, strikes and deletes previous language, or repeals entire portions of law. A bill isn’t a bill, and it’s definitely not sitting on Capitol Hill, without it.

    Here’s how amending clauses work:

    Let’s say a bill sponsor wants to amend an entire section of law that’s in the Colorado Revised Statutes. The amending clause would look like this:

          SECTION 1. In Colorado Revised Statutes, amend 1-1-1101 as follows:

    The language following the “as follows” specifies what the bill and its amending clause are up to:

          SECTION 1. In Colorado Revised Statutes, amend 1-1-1101 as follows:

          1-1-1101. The above amending clause amends an entire section of law. (1) Within the section that the bill is amending, the changes it makes to the law are illustrated in two ways:

          (a) In small caps; or

          (b) In strike type.

          (2) If a bill adds new provisions to the law, the new language is shown in small caps.

          (3) If a bill repeals provisions of the law, the language is shown in strike type When amending, a bill can both add and remove language in the same provision.

    This is a nifty way to change the law, but maybe the bill sponsor still hasn’t found what she’s looking for. Let’s try it another way:

          SECTION 2. In Colorado Revised Statutes, 1-1-1102, amend (1)(b) as follows:

          1-1-1102. The above amending clause amends a specific provision of the law. (1) Sometimes a bill sponsor doesn’t  need (or doesn’t want) to amend an entire section of the law. When that happens:

          (a) The bill will specify the provision the sponsor wants to change in the amending clause; and

          (b) The bill will make changes to that section subsection of the law only.

    Maybe amending isn’t in a bill sponsor’s plans. But creating new law is:

          SECTION 3. In Colorado Revised Statutes, add 1-1-1103 as follows:

          1-1-1103. The above amending clause adds a new provision of law. (1) Sometimes the bill sponsor will want to add a brand new section of law to the Colorado Revised Statutes.

          (2) When a bill does this, all language in that section will be shown in small caps.

          (3) A bill can add new articles, new parts, new sections, and new subsections.

    Now that we’re on a roll, what if the bill sponsor wants the bill to eliminate not create law?

          SECTION 4. In Colorado Revised Statutes, repeal 1-1-1105 as follows:

          1-1-1105. Use the above amending clause if to the bill doesn’t add to or change a law, but instead removes it from the books entirely.(1) There are two ways a bill can repeal this section 1-1-1105.

          (2) The example shown here shows all of the language that was currently in law in strike type.

          (3) This is how most repeals are drafted, so that legislators and the public can see exactly what provisions are removed from the law.

    Sometimes a bill won’t show the repealed language in strike type because it’s removing the equivalent of 30 pages of law from the Colorado Revised Statutes, and the bill really doesn’t need to be that long. That’s when the bill sponsor might want to use what we in the drafting-amending-clauses-biz call a “straight repealer,” which announces that the provision of law the bill is amending is la fin; it’s over and out of the statutes, without showing the removed language in strike type:

          SECTION 4. In Colorado Revised Statutes, repeal 1-1-1105.

    The bill sponsor is in it to win it now, but maybe the bill should be even more specific:

          SECTION 5.  In Colorado Revised Statutes, 1-1-1104, amend (1) introductory portion and (1)(a); repeal (2); and add (3) as follows:

          1-1-1104. The above amending clause is good at multitasking. (1) Sometimes a bill sponsor does not want to amend an entire section:

          (a) Amending an entire section leaves the entire section open to additional amendments that fit under the title of the bill during the legislative process.

          (b) This is something a sponsor should consider when deciding how to change the law.

          (2) We should all just give up now, it’s getting too complicated.

          (3) Put the amending clause to work. In this example, the bill sponsor wanted to leave (1)(b) alone (to not make any changes to it). So the sponsor only amended, repealed, and added very specific subsections in this section.

    Okay, you say. But what if a bill is amending nearly every provision of a section, part, or article? Is there anything we can do besides use our trusty amend direction? But of course. Here’s where a bill sponsor might choose a different kind of amending vehicle—the R&RE or “repeal and reenact.” To illustrate: Instead of repealing section 1-1-1105 (Section 4 of the bill in the earlier example), let’s repeal and reenact it:

          SECTION 4. In Colorado Revised Statutes, repeal and reenact, with amendments, 1-1-1105 as follows:

          1-1-1105. Repealing and reenacting a provision of law has its pros and cons. (1) On the PRO side, it can be complicated and confusing to extensively amend a section; at some point the reader might have no idea where the strike type starts and the small caps begin. That’s when repealing and reenacting can be useful.

          (2) In the first SECTION for example, subsection (1) read “There are two ways a bill can repeal this section 1-1-1105.” However, because we’re repealing and reenacting this section, we’re removing all the existing language and replacing it with the new and newly arranged—so everything’s in small caps.

          (3) The potential issue with the R&RE is that legislators and the public can’t see, on the page, how 1-1-1105 used to read, which might make it difficult for them to know exactly how the bill is changing the law without dusting off their Colorado Revised Statutes and comparing the original version to the new one.

    We’ve only just scratched the surface of amending clauses. But it’s clear that a well-crafted bill uses amending clauses (and strike types and small caps) wisely.

    In drafting their bills, legislators should work with the drafters to ensure that their fellow legislators, the public, and especially their constituents, can clearly see how the bill is changing the law.