Colorado LegiSource

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

Category: Constitutional Requirements

  • Who Does What? The Boundaries of Each Branch’s Authority

    Editor’s note: This article was originally written by Julie Pelegrin and posted on July 19, 2012. This version has been edited and updated for this week’s publication.

    by Jery Payne

    During the legislative session, legislators and legislative staff are so busy working with bills and amendments that we sometimes lack the time to step back and see the operations of the legislature in context with the other branches of state government. That is why it can be jarring when the drafter raises separation of power concerns. The specific constitutional authority given to and requirements imposed on each of the branches of state government can get confused and even overlooked in the rush of the legislative session.

    The legislative interim affords us the luxury of time to review the state constitution and some of the court cases interpreting it and to remind ourselves of the roles of the executive, judicial, and, especially,  legislative branches. This article looks at the constitutional authority of each branch of government, including the General Assembly, the constitutional limitations on that authority, and the constitutional requirements imposed on the General Assembly.

    To understand the authority and role of the General Assembly in state government, we must first review how the state constitution generally distributes power in state government. Similar to the organization of powers at the federal level, Article III of the Colorado Constitution organizes power within the state government as follows:

    The powers of the government of this state are divided into three distinct departments,—the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.

    The state constitution then specifies the powers of the executive branch in Article IV, recognizing the governor as holding the “supreme executive power of the state” and charging the governor with faithfully executing the laws of the state. The governor has several specific constitutional powers, including acting as the commander in chief of the state’s military forces, granting reprieves and pardons, requesting information and reports from the executive branch agencies, annually reporting on the state of the state to the General Assembly, and annually accounting for the state’s expenditures and estimating the state’s anticipated revenues.

    The state constitution gives the governor several powers that relate specifically to the General Assembly. The governor can convene the General Assembly in a special legislative session or adjourn the General Assembly if the House and  Senate cannot agree on an adjournment date. The governor can veto entire substantive bills and veto specific line-items in appropriations bills. If the governor does not act to either sign or veto a bill within specified time periods, however, the bill becomes law without the signature.

    The state constitution also lays out the powers of the judicial branch. Article VI specifically creates several courts, most notably a Supreme Court and district courts, to exercise the judicial power of the state. And Article VI authorizes the General Assembly to create additional courts. The General Assembly used this authority to create the Colorado Court of Appeals in statute.

    Article VI goes on to describe the jurisdiction of the Supreme Court, the district courts, and the other courts listed in the constitution and the terms and qualifications of justices and judges. The state constitution also specifically authorizes the Supreme Court to adopt rules for the administration of the courts and for procedures in civil and criminal cases.

    Article V of the state constitution establishes the legislative branch, giving it the “legislative power of the state,” but reserving to the people the powers of initiative and referendum. The other specific powers given to the General Assembly are the powers to adopt rules governing its proceedings and rules for enforcing its procedures, disciplining members, protecting members from violence and offers of bribes, and expelling members. The General Assembly’s list of specific powers is short because, unlike Congress and unlike the executive and judicial branches, the Colorado General Assembly’s power is plenary, rather than enumerated. This means that the General Assembly need not find a grant of power to legislate on a topic. So long as the legislation does not violate the state or federal constitutions, the General Assembly has the power to legislate on the subject.

    The state constitution separates the powers of the executive, judicial, and legislative branches with the intent that each will exercise only those powers assigned to it and will not attempt to exercise powers assigned to one of the other branches; each will play in its own sandbox, so to speak. Not surprisingly, however, there is significant overlap among the separated powers.

    For example, the General Assembly may adopt mandatory parole requirements, but these do not violate the court’s authority to sentence a defendant. (People v. Barth, 981 P.2d 1102 (Colo. App. 1999)). And although the state constitution gives the Supreme Court authority to set the procedural rules for criminal and civil trials, the General Assembly by statute may change those rules for substantive policy reasons, so long as the changes do not violate constitutional rights. (People v. Smith, 182 Colo. 228, 512 P.2d 269 (1973).)

    Similarly, the state constitution gives the legislative power to the General Assembly, but the General Assembly can authorize an executive branch agency to adopt rules, so long as there are sufficient guidelines and safeguards. (Colo. Auto & Truck Wreckers Ass’n v. Dept. of Rev., 618 P.2d 646 (Colo. 1980)). And a court, in interpreting a statute, can require an executive branch agency to spend its appropriated funds for specific uses. (Goebel v. Colo. Dept. of Institutions, 764 P.2d 785 (Colo. 1988)).

    The separation of powers among the three branches of government  is real and enforceable, but these divisions are often neither as bright nor as distinct as some would like. When one of the branches does not exercise its authority, one of the other branches may attempt to use these ambiguities to usurp that authority. For example, if the General Assembly does not enact a policy through legislation, the executive branch may attempt to enact that policy either through an executive order or by rule-making. If this happens, the General Assembly may protect its constitutional authority either by enacting legislation to affirm or reverse the executive branch’s action or by bringing suit against the executive branch.

  • 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.