by Sharon Eubanks and Julie Pelegrin

Every year, the Senate spends significant time confirming the Governor’s appointments to boards, commissions, and executive branch offices – a task that doesn’t clutter the calendar for the House of Representatives. This week, Governor Hickenlooper appointed Donna Lynne to fill the vacancy in the office of lieutenant governor that will arise when Lieutenant Governor Joe Garcia’s resignation takes effect later this month. Confirmation of this appointment doesn’t follow the ordinary course of business. By operation of the state constitution, Ms. Lynne must be confirmed by both the Senate and the House of Representatives.

Power to Appoint Balanced by Power to Confirm
Section 6 (1) of article IV of the Colorado constitution authorizes the Governor to nominate and “by and with the consent of the Senate” appoint all officers whose offices are established by the constitution or created by law and whose appointment or election is not provided for in another constitutional provision or statute. The Senate’s responsibility to review the Governor’s appointments is an excellent example of the separation of powers within the constitution. The Governor appoints the executive branch officers to administer the operations of state government, but those persons cannot officially take office until the legislative branch approves the appointments, although, if they are appointed during the interim, they can serve until confirmed – or not – during the legislative session. The legislative power to confirm checks the executive power to nominate and appoint.

Appointment of State Officers and Vacancies in Certain Constitutional Offices
The phrase used in section 6 (1) of article IV, “all officers whose offices are established by this constitution, or which may be created by law,” is interpreted as the power to appoint officers other than the elected statewide officials listed in section 1 of article IV. Using this power, the Governor regularly appoints individuals to hundreds of state offices, including heads of departments, other departmental officers, and members of the myriad boards and commissions in the executive branch – all of whom must be confirmed by the Senate.

Section 6 (2) of article IV specifically authorizes the Governor to fill any vacancy that may occur in the office of state treasurer, secretary of state, or attorney general. The Governor has exercised this power only on rare occasions. Since 1974, a Governor’s appointment to one of these constitutionally created state offices is also “by and with the consent of the Senate.”

To illustrate the number of gubernatorial appointments that the Senate must consider during a typical legislative session, according to records kept by the Secretary of the Senate, the Governor submitted 221 appointments during the 2013 session; 177 appointments during the 2014 session; 179 appointments during the 2015 session; and 205 appointments so far this session.

Senate Rules for Confirmations.
Senate Rule 36 sets forth the process the Senate uses for considering governor appointments. First, the Senate receives the appointment from the Governor and it is read in open session. At that point, the Senate President refers the appointment to at least one committee of reference. The committee schedules its consideration of the confirmation on the Senate calendar to allow the public to comment and submit information to the committee concerning the appointment. The committee then considers the appointment in an open meeting on the calendared date, but it doesn’t conduct a public hearing on the appointment unless a majority of the committee members present vote to do so.

The question often arises whether a committee of reference can “kill” or “postpone indefinitely” a governor’s appointment. Based on legislative custom and practice, a committee cannot “kill” a governor’s appointment. A committee can only recommend to the Senate that it should or should not confirm a governor’s appointment. Only the Senate as a body can, by vote, confirm or not confirm a Governor’s appointment.

In its report to the Senate, a committee of reference may recommend the Senate conduct an executive or “closed” session to consider a governor’s appointment. But the Senate will consider the appointment in open session unless a majority of the Senators vote to consider the appointment in executive session. And even if they discuss the appointment in an executive session, section 6 (3) of article IV of the state constitution requires the Senate to act on the appointment in open session and by a recorded roll call vote.

A committee may also recommend in its report that the appointment be placed on the consent calendar, subject to the decision of the Senate Majority Leader that the appointment is noncontroversial. Once the Senate receives a committee’s report, the appointment is placed on the regular or consent calendar for the 2nd day of actual session following receipt.

Vacancy Appointments for the Office of Lt. Governor
But it may be that none of this will apply to the appointment of the lieutenant governor. When a vacancy occurs in the office of the lieutenant governor, the constitution requires a confirmation process that includes the House. In 1974, the voters amended section 13 of article IV of the state constitution to say that, when there is a vacancy in the office of the lieutenant governor, the Governor will nominate a person who will take office “upon confirmation by a majority vote of both houses of the general assembly.” Since 1974, this confirmation process has been followed only once. Lieutenant Governor Mike Callihan resigned on May 10, 1994, the second-to-last day of the 1994 legislative session. The resignation took effect at noon that day. Shortly after the resignation took effect, to avoid having to call a special legislative session, Governor Roy Romer notified both the Senate and the House of Representatives that he had nominated Senator Sam Cassidy to fill the vacancy in the office of the lieutenant governor. The General Assembly then adopted a joint resolution that set out the procedures the Senate and the House would follow in considering the confirmation of that nomination. With this resolution, the House and the Senate agreed to the process routinely used by the Senate to confirm the Governor’s appointments. The resolution also provided that the House would consider the appointment first, and the Senate’s consideration would follow if the House confirmed the appointment. On May 11, 1994, a majority of the members of both the House and the Senate confirmed Senator Cassidy’s appointment as lieutenant governor.

Since the Governor’s appointment of Ms. Lynne just occurred earlier this week, the General Assembly has not yet taken any actions to establish the process by which it will consider this appointment.

by Julie Pelegrin

Recently, every real property owner in Colorado received a property tax bill for 2016. The bill states the actual value of the real property, the assessed value, the number of mills levied by the various local governments with jurisdiction over the property, and, finally, the amount owed. For many persons, their annual property tax bill is one of life’s great mysteries. Who collects this money? How do they calculate the property tax owed? How is real property valued for taxation? What is the Gallagher amendment everyone talks about, and how does it affect property tax? And what is a mill, anyway?

First, the easy part: A primer on property tax.

Counties collect property tax for themselves and on behalf of the other local governments or special districts that are located within each county. When you look at your bill, it will probably have a mill rate for the county, the municipality, the school district, and maybe one or more special districts in which your property is located.

A mill is one-thousandth of a dollar, which means one mill is equivalent to one-tenth of a cent or $0.001. The mill rate is the total number of mills that a local government – or multiple local governments – levies against the assessed value of a piece of property. To calculate your property tax bill, the county treasurer multiplies the assessed value of property by the total mill rate and divides the product by 1,000.

Every two years, each county assessor determines the actual value of all taxable real property located in the county. Under the Taxpayer’s Bill of Rights (TABOR), the county assessor must determine the value of residential property solely by using the market approach to appraisal, which is based on recent sales of comparable properties. The assessor uses market value and other methods to determine the actual value of other taxable real property.

But your property tax bill isn’t based on the actual value of your property; it’s based on a percentage of the actual value, which is called the assessed value. The percentage is called the valuation for assessment ratio, commonly referred to as the assessment rate. There are actually two assessment rates. The assessment rate for residential real property is 7.96% for the 2015-16 property tax year, and the assessment rate for all other taxable real property for every property tax year since 1985 is 29%.

This is how your property tax bill is calculated. The county assessor calculates the assessed value of your residential real property by multiplying the actual value of your residential real property by 7.96%. Then, the county treasurer multiplies the assessed value of your property by the number of mills levied by the local governments where your property is located and divides the product by 1,000, and – voila – you have your property tax bill.

So here’s the hard part: The Gallagher Amendment.

In 1982, the General Assembly referred a constitutional change dealing with property tax to the statewide ballot; the change passed at the general election held that fall. Part of that referred measure is called the Gallagher Amendment, and it controls the assessment rate for residential real property.

The Gallagher Amendment directs the General Assembly to review the assessment rate for residential real property every other year, starting in 1985. The General Assembly was required to look at the total statewide assessed value of all taxable real property in 1985 and calculate what percentage of that total came from taxable residential real property. And for every year since then, the General Assembly must make sure that the percentage of the assessed value of taxable residential real property relative to the assessed value of all other taxable property remains essentially the same.

Part of the constitutional change passed in 1982 set the initial residential real property assessment rate at 21%, subject to subsequent adjustments by the General Assembly, and fixed the assessment rate for all other taxable real property at 29%, with no authority for adjustments. So, to maintain the percentage of assessed value of residential real property relative to the assessed value of all other taxable real property, the General Assembly can only adjust the assessment rate for taxable residential real property. And the adjustment usually lowers the residential assessment rate.

Since 1985, the assessment rate for taxable residential real property has dropped from 21% to 7.96% to keep the proportion of statewide assessed value of taxable residential real property to the assessed value of all other taxable real property at about 46% to 54%.

What’s the real impact of decreasing the assessment rate for residential real property?

A lower assessment rate for residential real property usually means that homeowners and landlords pay less property tax, but it generally has a negative impact on property tax collections by school districts and other local governments (the state does not collect property tax). Most school districts have more residential real property than other real property. So, as the residential assessment rate has decreased, the amount of property taxes that these school districts and other local governments collect has decreased, because the school districts and local governments can’t raise the mill levy to offset the rate decrease without voter approval under TABOR.

Also, in some years, the assessment rate for residential real property should actually have been increased to maintain the proportion of assessed value, but increasing the assessment rate requires voter approval under TABOR. So, in those years, the assessment rate for residential real property has remained unchanged and the amount of property tax revenue that the school districts collect is lower than it otherwise would have been if the residential assessment rate had increased.

All of this means that the state must use more state revenues to pay the costs of public education. It also means that the amount of property taxes collected statewide by local governments has generally decreased, which means the state pays for more services that would otherwise be provided locally.

So, while the Gallagher Amendment helps keep your residential property tax bill down, it decreases the amount of property tax revenues available to pay for local government services and increases the demands on the state budget.

by Jery Payne

Last week we discussed what a supermotion is and what a GAVEL motion is. If you missed it, you might want to check it out. It’s not necessary to read that article, but it may be helpful.

Whether by supermotion or not, GAVEL allows a bill to skip ahead in the normal process. But depending on how this is done, it can mean the process fails to meet a constitutional requirement.

Ironically, the constitutional requirement also comes from the GAVEL amendments to the Colorado Constitution, Section 20 of article V: “Every measure referred to a committee of reference of either house shall be considered by the committee upon its merits, and no rule of either house shall deny the opportunity for consideration and vote by a committee of reference….” This language was litigated in the case of Grossman v. Dean.

The court of appeals held that this provision creates “a legally protected right for each legislator to have a committee of reference consider and vote on a bill on its merits.” So each bill must be both considered and voted on.

Now, I’ll bet some of you are thinking: “What does ‘considered’ mean?”

Does it require a hearing? Probably, but that only begs the question of what has to happen in the hearing.

Does it mean a vote? Yes, but in Grossman v. Dean, the court held that a mere vote isn’t enough. Section 20 of article V specifically mentions both (1) consideration and (2) a vote. So the court held that merely voting isn’t enough.

Does it mean discussion, debate, or testimony? The committee probably has to do at least one of them, but it probably doesn’t have to do all three. Each would fulfill the consideration requirement, but any one is not necessary:

[T]he intent of GAVEL in requiring “consideration” was that legislators be precluded from completely prohibiting interactive committee consideration of the merits of a bill, which interaction normally includes some level of discussion, debate, or testimony. … The amendment … leaves the General Assembly to determine, on a case-by-case basis, the level of discussion, debate, or testimony that is required.

So GAVEL requires at least a bit of discussion, testimony, or debate. But the details are left to the General Assembly. House Rule 25 (j) (1) (E.2) delegates this discretion to the committee chair. So unless a statute or legislative rule says otherwise, the committee chair makes these decisions.

by Julie Pelegrin

As has been discussed several times in LegiSource, the General Assembly’s authority to legislate is plenary – which means complete or absolute – except as specifically limited by the state constitution. Many of the constitutional restrictions on the power of the General Assembly apply to specific subjects like the ability to tax, requirements regarding the personnel system, funding for public education, and legalizing marijuana. However, there are several that apply to legislation, regardless of the subject.

Art. V, Sec. 21: Single subject requirement
The most well-known requirement that the constitution imposes on legislation is the single subject rule: A bill cannot contain more than one subject, and that subject must be clearly expressed in the bill title. This rule actually does not apply to a bill that only contains appropriations, for example, the annual general appropriations or “long” bill. If a bill contains items that are not included within the subject specified in the bill title, a court may hold that those items are unconstitutional, but the rest of the bill, so long as it does fit within the subject of the bill title, will not be unconstitutional. For more on bill titles, see Keeping a Bill Title Constitutional and Informative; and Bill Title Questions…and Answers.

Art. V, Sec. 18: Each bill must have an enacting clause
To be constitutional, each bill must begin with the phrase, “Be it enacted by the General Assembly of the State of Colorado.” As a matter of practice, if someone amends a bill to remove the enacting clause, the bill is considered dead.

Art. V, Sec. 17: Laws only passed by bill; bill can’t change from its original purpose
Only a bill can create or amend a law; a resolution, joint resolution, memorial, or joint memorial does not have the force of law and is not enforceable as law. The General Assembly cannot amend a bill so significantly that the bill no longer accomplishes the purpose it was written to accomplish when introduced, as that purpose is expressed in the bill title.

Art. V, Sec. 19: Bills take effect by a particular date; bill cannot be introduced with only a title
When the General Assembly passes a bill, it takes effect on the date specified in the bill. If the bill doesn’t specify a date, the bill takes effect when it is signed, or allowed to become law, by the Governor. A bill that doesn’t include an effective date will include a safety clause. For more on safety clauses and the power to refer measures to the ballot, see How would You Like Your Bill? Questions a Bill Sponsor Must Decide; and The Power of the People – Reservation of the Initiative and Referendum Powers. A legislator cannot introduce a bill that consists only of the bill title; a bill must also include text that sets forth the changes to existing law or makes appropriations.

Art. V, Sec. 31: Revenue bills must start in the House
A bill that raises revenue must be introduced first in the House. The Senate may amend the bill after it passes the House. Several years ago, the Attorney General issued an opinion interpreting this section as applying to bills that raise or reduce state general fund revenue.

Art. V, Sec. 32: General appropriations bill cannot include substantive provisions
The general appropriations bill can only include appropriations to pay the expenses of the executive, judicial, and legislative branches, state institutions, interest on the public debt, and public schools. It cannot include substantive changes to the statutes. All other appropriations must be made in separate bills, which may include both substantive and appropriation provisions, and which must comply with the single subject requirement.

Art. V, Sec. 34: Appropriations to private institutions are prohibited
The General Assembly cannot appropriate state moneys for any charitable, industrial, educational, or benevolent purpose to a person, corporation or community that the state does not control. And the General Assembly cannot appropriate moneys to a denominational or sectarian institution or association. It is important to note that the courts, in interpreting and applying this section, have developed a “public purpose” exception to this section. More on that in a later article.

by Patti Dahlberg

Why start the legislative session so early — January 7 — this year? Because it’s the law! The convening date for a legislative session, the length of the legislative session, how much time the Governor has to act on bills as they are passed, and other dates and time periods that come into play during a legislative session are determined by the Colorado Constitution.

Some of the constitutional provisions governing the legislative session have been around since Colorado was a territory. And the citizens of Colorado have voted more provisions into the constitution since Colorado became a state 139 years ago. Either way, constitutional provisions are the ultimate law of this land.

The constitutional provision that determines when the legislative session annually convenes is section 7 of art. V, and requires the General Assembly to meet in regular session at 10 a.m. “no later than the second Wednesday of January each year.” This year, the General Assembly is actually convening on the first Wednesday in January. This is necessary because section 1 of art. IV requires the Governor and Lieutenant Governor to take office by the second Tuesday of January. But section 3 of article IV requires the General Assembly to declare the winner of the election for Governor and Lieutenant Governor or to decide who the winners are if the general election ends in a tie or is contested. To declare the winners, the General Assembly must be in session. So, each time a Governor is elected, the General Assembly must convene before the second Tuesday of January.

Each regular legislative session can last no longer than 120 days, including Saturdays and Sundays and any other days the General Assembly may decide to take off (section 7 of art. V). A regular legislative session can last fewer than 120 days, which has happened as recently as 2008. Section 7 also allows the General Assembly to meet outside of a regular session when convened in a special session by the Governor or by written request of two-thirds of the members of each house. During a special session, the General Assembly can consider only the specific subjects listed in the Governor’s call or in the written request. For more information on special sessions, see “Frequently Asked Questions concerning Special Legislative Sessions”.

Other constitutional provisions regarding the timing of legislative sessions include:

• Section 15 of art. V: During a legislative session, neither the House nor the Senate may adjourn for more than three days without the consent of the other house.
• Section 22 of art. V: Before a bill can become law, the votes on the bill must be taken on two separate days in each house.
• Section 11 of art. IV: The Governor has 10 days during the legislative session in which to sign a bill, veto and return it, or allow the bill to become law without a signature. The Governor has 30 days to act on bills that the General Assembly sends to him or her for signature during the last 10 days of session.

by Jery Payne

The 14th amendment to the United States constitution forbids states from denying “to any person within its jurisdiction the equal protection of the laws.” That seems simple enough. Right? (more…)

by Chuck Brackney

Can the U.S. Congress strip immigrants of the ability to challenge the Immigration and Naturalization Service’s interpretation of a law that barred the ability of legal permanent residents to apply for a waiver of deportation? Can a city seize, by eminent domain, private homes and transfer them to a private property developer for a local economic development project? (more…)

by Julie Pelegrin

As committees begin hearing more bills and considering more amendments, it’s likely that more questions will arise around bill titles. What is the single subject of this bill? Does this amendment fit within the bill title? Should I amend my bill title? Can I amend my bill title? Following are some quick Q&As designed to help understand the use and application of bill titles in the Colorado General Assembly. (more…)

by Julie Pelegrin

Because of the legislative rules you can only introduce five bills. But, you have eight issues that really need to be addressed in legislation. Why not combine a few of them and accomplish more in less time with less hassle? While it sounds efficient, it might also be unconstitutional. (more…)