Colorado LegiSource

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

Category: Constitutional Requirements

  • When Does an Act Become a Law? It depends.

    Editor’s note: This article was originally written by Julie Pelegrin and Patti Dahlberg and posted on March 20, 2015. This version has been updated where appropriate.

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

    Effective date clauses:

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

    SECTION 20. Effective date. This act takes effect July 1, 2025.

    Applicability clauses:

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

    SECTION 81. Effective date – applicability. This act takes effect November 1, 2025, and applies to offenses committed on or after said date.

    Or

    SECTION 25. Applicability. This act takes effect upon passage and applies to fiscal years beginning on or after July 1, 2025. (Note: This applicability clause must be accompanied by a safety clause.)

    Safety Clauses and 90-day Petition Clauses:

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

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

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

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

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

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

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

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

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

    Fun Facts About Referendums:

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

  • Looking Back to Move Forward: The Colorado Supreme Court Explains the State Constitution’s Retrospectivity Clause.

    by Conrad Imel

    Often the General Assembly passes bills to regulate future conduct, but sometimes a legislator wants to expressly address something that happened in the past. The Colorado Constitution limits the General Assembly’s power to enact legislation that applies retroactively, so we at LegiSource are here to help make sense of these limits on the General Assembly’s authority.

    The General Assembly has broad plenary authority to enact legislation, but that power is limited by state and federal constitutional provisions. One such provision is the Colorado Constitution’s retrospectivity clause. Article II, section 11 of the Colorado Constitution states:

    No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly. (emphasis added)

    Recently, in Aurora Public Schools v. A.S., the Colorado Supreme Court had occasion to outline the contours of this retrospectivity clause. Aurora Public Schools involved a challenge to the constitutionality of Senate Bill 21-088. That bill created a new statutory cause of action for victims of sexual misconduct that occurred while the victim was a minor. Like most laws, S.B. 21-088 applies prospectively, to conduct that occurs after the bill’s effective date. However, S.B. 21-088 also expressly applies retroactively. The bill created a three-year “look back” window for victims of misconduct that occurred between January 1, 1960, and January 1, 2022 (the bill’s effective date). The look-back provision allowed victims of past misconduct to bring a claim during the three-year period between January 1, 2022, and January 1, 2025. The plaintiffs in Aurora Public Schools brought a claim pursuant to the look-back provision; the defendants moved to dismiss the case, claiming that the look-back window was unconstitutionally retrospective.

    The Court in Aurora Public Schools began by explaining the retrospectivity clause and reaffirming its prior retrospectivity jurisprudence. The Court explained that the purpose of the retrospectivity clause is to prevent unfairness that would otherwise result from “changing the consequences of an act after that act has occurred. [. . .] In other words, the prohibition on retrospective legislation prevents the legislature from changing the rules after the fact because to do so would be unjust.”

    But not all retroactive legislation is unconstitutionally retrospective. To determine whether a retroactive law is unconstitutionally retrospective, Colorado courts use the “Story test,”[1]  which says that a law violates article II, section 11’s prohibition if it (1) impairs a vested right; or (2) creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past.  While these two prongs arguably overlap, a law that satisfies either prong is unconstitutionally retrospective. The focus of the test is on substantive laws. Laws that are merely procedural or remedial may apply retroactively without offending the constitution.

    The plaintiffs in Aurora Public Schools argued that there is a public policy exception to the prohibition on retrospective legislation, but the Court disagreed, holding that there is no public policy exception to the retrospectivity clause.

    Ultimately, the Court held that S.B. 21-088’s look-back window is unconstitutional in violation of the retrospectivity clause to the extent that it permits a victim to bring a claim for past sexual misconduct for which previously available causes of action were barred by the statute of limitations. The court found that the bill created a new right for relief for the plaintiffs, which in turn created a new obligation and disability with respect to past transactions for the defendants, in violation of the retrospectivity clause. Further, the court affirmed past precedent that the retrospectivity clause prohibits reviving claims that are time-barred by the statute of limitations and found that the three-year look-back window to bring a new cause of action for past conduct indirectly accomplishes the same ends as reviving a claim that is time-barred.

    So what does the Court’s opinion in Aurora Public Schools mean for the General Assembly? First, the Court made clear that Colorado courts will use the “Story test” to determine the constitutionality of a law that applies retroactively and that there is no public policy exception to the retrospectivity clause. Second, the Court explained that the retrospectivity clause prohibits the legislature from doing something indirectly which it could not do directly, so the retrospectivity analysis applies to any law that applies retroactively.

    The constitution does not completely prohibit the General Assembly from enacting laws that apply to conduct that occurred prior to the law going into effect, but it does prohibit laws that impair a vested right or create a new obligation, impose a new duty, or attach a new disability to past conduct. If a member wants to sponsor a bill that applies retroactively, the bill drafter can help walk the sponsor through any constitutional concerns.

    To read more about the Colorado constitution’s ex post facto clause (i.e., section 11 of article II), see https://legisource.net/2014/09/25/ex-post-facto-laws-effective-dates-and-legislative-time-travel/ .

    [1] The “Story test” is named for United States Supreme Court Justice Joseph Story, who first articulated the test in Society for the Propagation of the Gospel v. Wheeler, 22 F.Cas. 756 (C.C.D.N.H. 1814).

  • Changes to the Safety Clause: What’s Old is New Again

    by Conrad Imel and Pierce Lively

    You might be familiar with the “safety clause” that is included at the end of some bills, but that clause now looks a little different. To better reflect the language in the Colorado Constitution, for all bills going forward the safety clause will be:

    “The general assembly finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety or for appropriations for the support and maintenance of the departments of the state and state institutions.” (New language in bold.)

    In this article, we will explain a little background about the safety clause and why the Office of Legislative Legal Services decided to make this technical change.

    The language of the safety clause derives from the stated exception to the referendum power described in article V, section 1 of the Colorado Constitution. At the general election held in 1910, Colorado voters adopted an amendment to the constitution to give the people the authority to make laws through the powers of initiative and referendum (for more information about both the initiative and referendum powers, check out this LegiSource article). The referendum power as set forth in article V, section 1 (3) reads as follows:

    “(3)  The second power hereby reserved is the referendum, and it may be ordered, except as to laws necessary for the immediate preservation of the public peace, health, or safety, and appropriations for the support and maintenance of the departments of state and state institutions, against any act or item, section, or part of any act of the general assembly, either by a petition signed by registered electors in an amount equal to at least five percent of the total number of votes cast for all candidates for the office of the secretary of state at the previous general election or by the general assembly. [. . .].”

    What this means is that the people of Colorado may rescind all or part of an act passed by the General Assembly. By collecting and submitting signatures to the Secretary of State, an individual may place all or part of an act on the ballot for voter approval or disapproval. There is an exception, however, to this power: if the act is necessary 1) for the immediate preservation of the public peace, health, or safety; or 2) for appropriations to support a state agency or institution. The General Assembly invokes the exception by including a “safety clause” at the end of the act.

    The very first bill enacted with a safety clause, House Bill 348 adopted in 1913, referenced both types of laws excepted from the referendum power: “In the opinion of the General Assembly this act is necessary for the support and maintenance of the department of State and state institutions and it is hereby declared to be necessary for the immediate preservation of the public peace, health and safety.” Initially, the General Assembly used inconsistent safety clause language, but for the past 75 years or so, the safety clause has only included the language related to the act being necessary for the immediate preservation of the public peace, health, or safety.

    Which brings us to today. Prompted by discussions among Office of Legislative Legal Services staff, the Joint Budget Committee and Joint Budget Committee staff, the Office of Legislative Legal Services has decided to update the safety clause to reflect both types of acts excepted from the referendum power: preservation of the public peace, health, or safety, or appropriations to support a state agency or institution. This change does not alter the standard for when a safety clause may be included on a bill; it merely makes the safety clause better reflect the language in the constitution. It remains within the General Assembly’s discretion to invoke an exception to the referendum power by including a safety clause.

    Office of Legislative Legal Services staff has updated existing bill drafts that include a safety clause, including interim committee bill drafts, with the updated language. We hope this article helps legislators and the public understand the updated safety clause that they’ll start seeing on bills.

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

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

    by Megan McCall

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

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

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

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

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

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

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

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

  • 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.

  • Privacy Laws and the Free Speech Clause of the First Amendment

    by Jery Payne

    Should a state be able to pass laws protecting people’s privacy? Should the constitution protect a person’s right to freedom of speech? If you think the answer to both is “yes,” then you might be surprised to learn that those two goals can conflict.

    In 2007, Vermont passed a prescription­-confidentiality law, which forbade pharmacies from gathering and selling, for marketing, information detailing the prescriptions written by doctors. This law didn’t regulate the release of patient information; it was concerned with what prescriptions doctors were writing. This information is valuable because the drug companies can use it to market drugs to the doctors that are actually treating the types of patients the drugs may help.

    This law riled up drug manufacturers and data miners, who filed a lawsuit, Sorrell v. IMS Health Inc., in a United States district court. The lawsuit wended its way to the United State Supreme Court, which struck down the law based on the Free Speech Clause of the First Amendment to the United States Constitution. The Court had two main concerns:

    (1) The law was content-based, which means one has to look at the information to know if the law applies. When a law is content-based, the courts will normally consider it suspect under the First Amendment’s guarantee of freedom of speech, and this means that it’s unlikely to survive a challenge.

    (2) The law discriminated against certain users of the information. The Court was concerned that the law discriminated against people who would use the information to market drugs. That is, the pharmacies could sell the information to any person that wasn’t a drug manufacturer or marketer. Now, drug companies are the primary market for this information, but maybe a company that provides medical alternatives to drugs would be interested in the same information. The Court considered this fatal to Vermont’s claim that it was protecting the doctors’ privacy. If the law allowed broad communication of information except for one group of people, the Court thought that it didn’t really protect privacy. The Court contrasted this with the Health Insurance Portability and Accountability Act of 1996, which generally forbids the release of patient information:

    For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e.g., Health Insurance Portability and Accountability Act of 1996 …. A statute of that type would present quite a different case than the one presented here.

    In the holding, the Court also explained:

    This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. … [I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category….

    This case developed our understanding of the Free Speech Clause; that it not only affects laws that disseminate information, but it also affects laws that forbid creating or gathering information.

    In 2015 and 2016, Wyoming passed and amended a statute that made it illegal for a person to cross “private land to access adjacent or proximate land where he collects resource data” without the owner’s permission or other types of legal authority. I expect many of you may be wondering, “What does ‘resource data’ mean?” The statute, section 6-3-414, defined the term as “data relating to land or land use, including … data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species.” So the law applied broadly and aimed at protecting the privacy of landowners.

    In a case named Western Watersheds Project v. Michael, the 10th Circuit Court of Appeals more or less overturned the Wyoming law for violating the Free Speech Clause of the First Amendment. The appeals court was following Sorrell.

    If the law had merely forbid crossing private land, there wouldn’t have been a problem. The court explained that there is no “First Amendment right to be exempt from an otherwise generally applicable law in order to facilitate speech indirectly limited by the [law].” The state may forbid trespass although it would stop you from having your say on someone else’s land. This is because the law has a legitimate purpose that isn’t directly related to speech.

    But the Wyoming law didn’t merely forbid trespass; the law forbade trespass for the purpose of getting resource information. The law was content-based; you had to know what type of data was collected to know if the law applied. According to the Court, “The challenged statutes apply specifically to the creation of speech,” and thus “are subject to the First Amendment.”

    The lower court had dismissed the lawsuit upon summary judgment, which means that there hadn’t actually been a trial yet. So the appeals court stopped short of striking down the law. But the appeals court ruling made it extremely unlikely that the law would survive. As expected, the district court ended up declaring the law unconstitutional.

    Colorado and Wyoming are in the same judicial circuit, so this ruling applies in Colorado. So when thinking about a law to protect privacy, we would do well to be careful when (1) the law applies to obtaining only certain types of information or when (2) it’s aimed at one particular group. The first may be considered content-based and the second may be considered forbidden discrimination. It might seem better to narrowly tailor a law to apply only to the information we care about or to the group that wants the information, but either strategy may cause a court to hold that the law violates the Free Speech Clause of the First Amendment.

  • Presidential Electors Must Keep the Faith

    by Julie Pelegrin

    The U.S. Supreme Court recently held in Chiafalo v. Washington that not only can a state require a presidential elector to vote for the candidate nominated by the elector’s political party, the state can also punish an elector who fails to do so—a so-called “faithless elector.” The case was based on the removal of faithless electors in both Washington State and Colorado. The Washington Supreme Court looked to the legal precedent interpreting the U.S. Constitution and upheld the constitutionality of punishing faithless electors. The Tenth Circuit Court of Appeals, in Baca v. Colo. Dept. of State, looked more to the plain language of the U.S. Constitution and how it had historically been applied and found that removing a faithless elector was unconstitutional.

    The U.S. Supreme Court resolved the issue by taking the same approach as the Tenth Circuit—looking to the plain language and the historical application—but coming to the opposite conclusion. Looking at the same language and interpreting many of the same facts, the Supreme Court reversed the Tenth Circuit with an 8-0 decision (Justice Sotomayor recused herself).  A brief comparison of the two opinions illustrates how easy it is for lawyers to reach opposite conclusions.

    First, a primer on how we really elect presidents and vice presidents. Article II, section 1(2) of the U.S. Constitution directs each state to appoint, “in such manner as the legislature thereof may direct,” electors to elect the president and vice president. These electors make up the Electoral College. In Colorado, when we vote for candidates for president and vice president, we are actually voting for a slate of electors nominated by the candidates’ political parties. In every state except Maine and Nebraska,[1] the winner of the statewide popular vote receives all of the state’s electoral votes. For example, if the Democratic Party’s candidates win the popular vote in a state, then the Democratic Party’s electors will participate in the Electoral College for that state.

    The Twelfth Amendment to the U.S. Constitution specifies the process the electors must follow in electing the president and vice president. Each elector casts a vote for president and a vote for vice president. The Electoral College votes from each state are tallied, and the candidates for president and vice president who receive the most votes win, so long as they receive a majority of all the votes cast by the Electoral College. If no presidential or vice presidential candidate receives a majority, the House of Representatives chooses the president from among the top three vote getters, and the Senate chooses the vice president from among the top two vote getters.

    Colorado is one of 32 states that, by statute, require electors to vote for their respective parties’ presidential and vice presidential candidates. After the 2016 election, however, some of the Democratic Party electors decided to vote for someone other than Hillary Clinton, hoping to entice some of the Republican Party electors to vote for someone other than Donald Trump and ensure that no one received a majority of the Electoral College votes. If they had been successful, the House of Representatives would have chosen the president. Obviously, this strategy didn’t work. Instead, in Colorado, when an elector—Mr. Baca—voted for John Kasich instead of Clinton, the Secretary of State replaced him. And in Washington State, three faithless electors who voted for Colin Powell instead of Clinton were removed and fined $1,000.

    In both states, statutes authorized removal of the electors. In Washington, the three electors sued in state court, claiming the statutes were unconstitutional and their removal violated their federal constitutional rights as electors. The Washington Supreme Court held that the Washington statute was constitutional and nothing prevented the state from requiring electors to vote for their party’s candidate and punishing them when they failed to do so. The Washington electors appealed to the U.S. Supreme Court.

    In Colorado, Mr. Baca filed a civil action in federal court, claiming that the Secretary of State violated his constitutional rights by removing him. The Tenth Circuit agreed with Mr. Baca, holding that, even if the state could require electors to vote for their party’s nominee, it could not enforce the requirement by removing a faithless elector and nullifying the elector’s vote. The Secretary of State appealed to the U.S. Supreme Court, which agreed to hear both cases to resolve the disagreement.

    Both the Supreme Court and the Tenth Circuit recognized that states may require presidential electors to support the presidential and vice presidential nominees of their parties.[2] The issue was, whether a state could enforce that requirement. Both courts also agreed that the U.S. Constitution is silent on whether a state may remove a faithless elector. But that’s pretty much where the agreement ended.

    The Tenth Circuit found there is no implied power for a state to remove an elector because the elector isn’t fulfilling a state duty; the elector is fulfilling a federal duty. But the Supreme Court looked at the state’s unfettered power to appoint electors, which includes the power to impose conditions on the appointment—like who the elector has to vote for. The Supreme Court concluded that removing an elector who fails to meet those conditions is just a natural extension of the power to impose the condition itself.

    The Tenth Circuit looked to the “plain language” of Art. II, Section 1(2) and the Twelfth Amendment. Using contemporaneous definitions, it determined that the terms “elector,” “vote,” and “ballot” clearly imply that electors are to have discretion and exercise individual choices in voting for candidates.

    The Supreme Court, however, noted that the “plain language” doesn’t specify that electors must make their own choice when voting, like some state constitutions did when the constitution was written. The federal constitution could have said that, but it didn’t. The Court also noted that the terms “elector,” “vote,” and “ballot” don’t have to connote independence. Electors had been pledging to vote their parties’ tickets for years before the Twelfth Amendment was written, and those votes were counted even though they were not the result of an independent choice.

    Finally, the Tenth Circuit looked at history and original intent. Citing the Federalist Papers and former Supreme Court Justice Joseph Story’s commentary on the constitution, it found that the authors of the constitution intended electors to exercise their independent judgment; Justice Story had complained that electors had been pledging their votes for years, which was never the authors’ intent. The Tenth Circuit also found 165 instances of faithless electors, and all of those votes were counted even though the electors broke their pledges.

    The Supreme Court countered all of these findings. The Court refused to allow the Federalist Papers to override or add to the actual language in the constitution. The Court noted that as early as 1796, voters expected electors to vote the party ticket and, citing Justice Story and others, recognized that electors did just what they were told to do. And finally, the Court identified 180 instances of faithless electors—out of 23,000. As such, those instances were mere anomalies, only one of which was even contested. That elector’s faithless vote was challenged and was upheld, but the elector came from a state that did not have a pledge statute. The Court observed that one instance in 200 years “hardly constitutes an historical tradition.”

    Based on its reading of history and the law, the Supreme Court found that states, for much of the last 220 years or so, have been requiring presidential electors to keep faith with their parties and the voters, and there’s no constitutional requirement to change that now.

     

    [1] In these states, the candidate who wins the popular vote in each congressional district gets the electoral vote for that district and the two remaining electoral votes go to the candidate who wins the statewide popular vote. So both Republican and Democratic Party electors may participate in the Electoral College for these states.

    [2] In the earlier case of Ray v. Blair, the U.S. Supreme Court had upheld the states’ ability to require presidential electors to vote for their parties’ candidates.

  • How Long Does the Governor Have to Take Action on a Bill?

    by Jennifer Gilroy

    You’ve just learned that your chamber has delivered your bill to the governor’s office and now you’re biting your nails wondering whether Governor Polis will sign it. But you are admittedly a little confused about just how long he has act on it. Unlike legislative deadlines, this deadline is more of a floating deadline, completely unrelated to the legislative calendar—other than what day the General Assembly actually adjourns sine die.

    The amount of time that the governor has to take action on a bill is actually described in Article IV, section 11 of the Colorado constitution which states, in pertinent part:

    “…If any bill shall not be returned by the governor within ten days after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the general assembly shall by their adjournment prevent its return, in which case it shall be filed with his objections in the office of the secretary of state, within thirty days after such adjournment, or else become a law.” [Emphasis added]

    In other words, if the General Assembly delivers a bill to the governor, and there are 10 or more days left in the session, then the governor only has 10 days to sign or veto the bill. If he doesn’t act within that time, the bill automatically becomes law without his signature. If the General Assembly delivers a bill to the governor when there are fewer than 10 days left in the session or after they have adjourned sine die, then the governor has 30 days after the date of adjournment sine die to act on the bill or the bill automatically becomes law without his signature.

    At the time of writing this article, however, it is not certain what day the General Assembly will actually adjourn sine die. In any other year when consecutive calendar days count toward the 120-day limit, it is much easier to tell when the General Assembly is in the last 10 days of the session.  However, in this unique legislative session during which a declared public health disaster emergency makes only those days when either the House or Senate convene count toward the 120-day limit, determining when that 120th day will actually occur is a lot murkier. For more information on how the General Assembly identifies “10-day bills” in a normal legislative session, check out this LegiSource article.

    At this point, all indications are that the General Assembly is unlikely to meet the full 120 days they are permitted under the constitution and will, in fact, adjourn sine die early.  That is because, even though it is only the 82nd day of the 120-day legislative session, the Speaker announced on Monday that we are in the final five days of the session and both the Senate and House Majority Leaders announced in their respective chambers that, starting Wednesday, we are in the final three days of session. Despite those announcements, it appears more likely they will adjourn sine die on Monday.

    If the General Assembly does, in fact, adjourn sine die on Monday, June 15th, then the 10-day rule will apply to bills that were delivered to the governor on or before June 5th.  For bills delivered to the governor on and after June 6th, the governor has 30 days following adjournment sine die to sign or veto those bills or they will automatically become law without his signature. And if the General Assembly adjourns sine die on June 15th, the 30th day following final adjournment will fall on July 15th.  Any bills that become law without the governor’s signature will take effect at 12:01 a.m on Thursday, July 16th, unless a later date is specified in the bill.

  • Does the Colorado Constitution Prohibit Benevolent Legislation? [Part 2]

    by Jery Payne

    If you haven’t read the May 14th post , you will probably need to read it to make sense of this week’s post. But for a quick reminder: In the late 19th century, the Colorado Supreme Court struck down legislation that provided monetary relief for farmers because it violated section 34 of article V of the state constitution. This section prevents appropriations to persons that are not under the state’s control. In the late 20th century, the Colorado Supreme Court upheld legislation that provided monetary incentives for airlines to locate their headquarters in Colorado, even though these airlines were not under the state’s control. What changed? The Colorado Supreme Court developed the public-purpose doctrine, which we will explore this week.

    In Bedford v. White, the court first articulated, in 1940, the public-purpose doctrine. The General Assembly had provided pensions for retired public servants, including judges. State Auditor Homer Bedford was concerned because pensions are appropriations for people who have retired from the state, so these people are no longer under the control of the state. Pensions appear to fall squarely within the holding of the farmer-relief case. When the two retired justices Harrison White and John Adams asked for their pensions, the state auditor refused to issue vouchers for the pension. The justices sued the state auditor. This case presented the issue of section 34’s prohibition squarely before the court.

    The opinion wrestles with the fact that invalidating the pensions would really hurt the state’s ability to attract high-quality judges and employees: “[P]ensions, generally, are not considered donations or gratuities but inducements to continued service.” After all, a typical justice could probably make more income in private practice. And given that firefighters and peace officers can die in the line of duty, the state would have a harder time with recruitment unless it promised to take care of their families. Because pensions are not charity, the court didn’t believe that section 34 was really intended to forbid pensions.

    The court also realized just how far reaching the holding would be: “In recent years legislation providing for pensions and retirement compensation to large numbers of persons after their retirement from service as public officers, servants, employees, and agents of the state has been enacted by the General Assembly.” And then, realizing that the opinion was going far afield from the facts presented, they made excuses for bringing it up:

    We are aware of the fact that the rights of none of these classes are directly involved or may be determined in this suit. We mention them merely as instances of the possible far reaching effect of the construction of these two sections of the Constitution contended for by [the state auditor] in this case.

    Yet the holding in the farmer-relief case appears to apply to pensions, which benevolently pay persons not under absolute state control. (Is the state’s control over anybody absolute?) In all this wrestling with the potential reach of section 34, the court realized that the decision in the farmer-relief case went too far.

    Therefore, the court narrowed section 34 from its broad interpretation in the famer-relief case. The court held that section 34 does not prohibit appropriations that serve a public good or purpose:

    If a pension has no reasonable relation to the public good it is of course a mere private grant and void. But if it serves a present public purpose it is not a mere private grant even though as an incident to the accomplishment of the public purpose the recipients thereof may be personally benefitted.

    So the court upheld the pensions because they serve the public good.

    During the 20th century, the Colorado Supreme Court developed the public purpose doctrine because a broad, substantive reading of section 34 is a monster that could swallow any act. Each act is passed, at least in the mind of the act’s sponsor, for benevolent purposes. (Yes, a legislator could sponsor an act for malevolent purposes, say for revenge, but how likely is that act to pass unless the sponsor can at least articulate a benevolent purpose?) The law against murder serves the benevolent purpose of protecting people. And an appropriation is required to enforce the law against murder. Therefore, the law against murder requires an appropriation that benefits the small group of people who would otherwise die and who are not controlled by the state.

    Faced with this dilemma, the court developed a way to harmonize section 34 with the General Assembly’s ability to pass any appropriation: the public purpose doctrine. If the narrow reading is too narrow and the broad reading is too broad, the public purpose doctrine is the Goldilocks position; it’s a compromise. The idea is that an act is legitimate if it is for the public good rather than for private gain. The only type of act that would run afoul of this prohibition would appear to be an act that a court finds has a significant private gain with little or no public benefit. An act that has the appearance of corruption would probably fit this description, but appropriations made for a legitimate public purpose should not run afoul of section 34.

  • Does the Colorado Constitution Prohibit Benevolent Legislation? [Part 1]

    By Jery Payne

    Toward the end of the 19th century, some farmers moved to an area in the eastern plains of Colorado then known as the “the rain belt region.” The name was a bit optimistic. Due to a drought, the farmers lost their crops. The General Assembly passed a relief act, which provided for the purchase of seeds and grain for the farmers. Attorney General Byron Rogers was concerned that the act violated section 34 of article V of the Constitution of Colorado.

    So the attorney general asked Governor Albert McIntire to submit interrogatories to the Colorado Supreme Court. In a case titled In re Relief Bills, the court held that:

    We think it is clear that the state cannot, in its sovereign capacity, extend aid for charitable, industrial, educational or benevolent purposes to any person, corporation or community, unless such person, corporation or community is under the absolute control of the state.

    Toward the end of the 20th century, Governor Roy Romer called a special session to pass legislation creating incentives for airlines to place operations in Colorado—specifically, United Airlines was considering placing a maintenance facility in Colorado. The General Assembly passed an incentive act, which provided for building airport facilities to accommodate United’s planned expansion. The governor was concerned that the bill might violate section 34.

    So the governor submitted interrogatories to the Colorado Supreme Court. In a case titled In re Interrogatory Propounded by Governor Roy Romer on House Bill 91S-1005, the court held: “We conclude that, on its face, [the act] does not violate article V, section 34.”

    What a difference a century makes! Let’s look at the language of section 34:

         Section 34. Appropriations to private institutions forbidden. No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association.

    Both acts made appropriations. Both acts apply to the forbidden categories: charitable, industrial, educational or benevolent. The first act was for charitable and benevolent purposes; the second act was for industrial and benevolent purposes. Both acts spent the money for a covered entity: a person, corporation, or community. And finally, neither farmers nor airlines are under the absolute control of the state. So far, the two cases both fall under section 34.

    I’ll bet I know what some of you are thinking: Neither of these cases falls under section 34 because in both cases, the appropriation was made for, not to, the farmers and the airline. The words to and for don’t mean the same thing. Therefore, an appropriation must be made to state agencies, and then the state agencies may spend the money for charitable, industrial, educational, or benevolent purposes. This narrow reading is procedural rather than substantive. The Colorado Supreme Court, however, has not adopted the narrow procedural reading. In 1895, the court struck down the farmer’s relief act, which didn’t actually appropriate the money to the farmers. And although the court upheld the airlines incentive act, the court didn’t uphold the act by distinguishing between the words to and for. Instead, the court’s holding is based on the public purpose doctrine:

    [T]he legislation must evince a discrete and particularized public purpose which, when measured against the proscription of Article V, Section 34, preponderates over any individual interests incidentally served by the statutory program.

    The court has drawn a distinction between appropriations made for the good of the state versus appropriations made for the good of a smaller group. Of course, the second case’s appropriation was made to help the small group of airline companies. The act, however, helpfully explains that the “health, safety, and welfare of the people of this state are dependent upon the continued encouragement, development, and expansion of opportunities for employment in the private sector….” In other words, an airline placing an operation within Colorado would bring jobs. Specifically, the act requires the new operation to employ 3,000 people with an average salary of at least $45,000. That many jobs would increase tax revenue, lower social welfare spending, have social benefits, etc. Therefore, the public purpose of more jobs outweighs the private interests of helping an airline.

    A case can be made that the farmer-relief act wasn’t only charity. It gave the farmers the seeds and grains they needed to grow more food. Everyone in Colorado eats food, so the public would benefit from a greater supply of food. And because farmers grow food from seeds and grain, farmers can’t do the job of farming without seeds or grain. So giving seeds and grain to farmers is an inexpensive way to increase jobs. If more jobs justify helping out an airline, why wouldn’t more jobs and more food justify helping out farmers? Did the act’s proponents fail to argue the case well? Did the court decide that, in this case, the private purpose outweighed the public purpose?

    No. The court didn’t decide the farmer­-relief case based on the public purpose doctrine. The court didn’t rest its holding on the basis of the act’s private purpose. The court simply held that the “state cannot … extend aid for charitable, industrial, educational or benevolent purposes to any person….” It was a blanket substantive prohibition.

    In two weeks, I’ll explain what happened between these two cases.