Colorado LegiSource

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

Category: Legislative Process

  • End of Session Approaches Triggering Exceptions in Legislative Rules

    by Julie Pelegrin

    For the second year in a row, we know we’re close to the end of the regular legislative session, we just don’t know how close. We know the General Assembly must adjourn sine die no later than 11:59 p.m. on June 12. But rumors have been circulating for some time now that “the plan” is to finish early. How early is anyone’s guess.

    First, a brief reminder of why we know everything must come to a screeching halt no later than June 12. Article V, section 7 of the Colorado Constitution requires the General Assembly to meet annually in regular legislative session for no more than 120 calendar days. Normally, these legislative days are counted as consecutive calendar days, starting with the first day of the session, regardless of whether the House or the Senate actually convenes on a particular day.

    Last year, the Colorado Supreme Court confirmed the constitutionality of Rule 44 of the Joint Rules of the Senate and House of Representatives, which at the time provided that, during a declared state of emergency based on a public health epidemic, the General Assembly would only count those days on which one or both of the houses actually convened toward the 120-day limit. The General Assembly amended Rule 44 last January to state that every day after the General Assembly convenes counts toward the 120-day limit, except when both houses temporarily recess for longer than three consecutive days. So, since January 13, 2021, every calendar day has counted, except the 31 days beginning January 16, 2021, and continuing through February 15, 2021. So that’s how we know today—May 28, 2021—is the 105th legislative day and June 12th is the 120th legislative day (assuming both houses don’t adjourn for more than three days before the 12th).

    The Senate Majority Leader has issued a memo stating that, as of Wednesday, May 26, the Senate is in the last three days of session. The House Majority Leader has announced that as of Thursday, May 27, the House is in the last three days of session.

    This does not necessarily mean the General Assembly will adjourn sine die in three days, but it means that the exceptions in the legislative rules that apply only during the last three and the last two days of the session are now in effect.

    Those exceptions are:

    Last 3 days of session:

    • House Rule 25 (j) (3); Senate Rule 22 (f): Each House committee chairperson must submit committee reports to the House front desk as soon as possible after the committee acts on a bill. No more waiting for two or three days to turn in the report. This requirement—to submit the committee report as soon as possible—actually applies to Senate committee chairs in the last 10 days of session. See Senate Rule 22 (f). And during these last 10 days, at the request of the Senate Majority Leader or President, the chairman must submit the committee report immediately. If that doesn’t happen within 24 hours after the request, the committee staff person is required to submit the report to the Senate front desk on the chairman’s behalf.
    • House Rule 36 (d); Senate Rule 26 (a): The House and the Senate can consider the amendments made in the second house without waiting for each legislator in the first house to receive a copy of the rerevised bill and for the notice of consideration to be printed in the calendar.
    • House Rule 36 (d); Senate Rule 26 (b): Legislators can vote on conference committee reports as soon as the reports are turned in to their respective front desks—even if the report has not been distributed to the members and has not been calendared for consideration. The usual practice, however, is to try to distribute copies of conference committee reports to legislators before the vote.
    • House Rule 35 (a): Throughout most of the session, a Representative may give notice of the intention to move to reconsider a question. In this case, the Representative has until noon on the next day of actual session to move to reconsider. However, during the last three days of session, a member may not give notice of intention to reconsider.
    • Senate Rule 18 (d): Throughout most of the session, a Senator may give notice of reconsideration, and the Secretary of the Senate must hold the bill for which the notice was given for up to two days of actual session. During the last three days of session, however, this rule is suspended, and a Senator cannot hold up a bill by giving notice to reconsider.
    • House Rule 33 (b.5): Usually, the House rules only allow technical amendments on third reading; offering a substantial amendment on third reading may result in the bill being referred back to second reading. During the last three days of session, however, a Representative may offer a substantial amendment to a bill on third reading.

    Last 2 Days of Session:

    • House Rule 35 (b) and (e): A motion to reconsider in the House usually requires a 2/3 vote to pass. In the last two days of session, however, a motion to reconsider – in a House committee or in the full House – requires only a majority vote.

    And there are a couple of additional rule changes that have apparently been in effect for some time:

    Last 5 Days of Session:

    • Joint Rule 7: One day after a bill is assigned to a conference committee, a majority of either house may demand a conference committee report, and the committee must deliver the report before the close of the legislative day during which the demand is made. If a bill has been assigned to a conference committee at any time during the session and the committee hasn’t turned in a report, the committee must report the bill out within these last five days of session.

    Last two weeks:

    • Senate Rule 22 (a)(2): During the final two weeks of a legislative session, allows a Senate committee chairman to schedule a committee hearing on a day other than the usual day the committee meets.

    While we don’t know exactly the date on which the General Assembly will finally adjourn this year’s legislative session, we may, with some confidence, plan to sleep in on June 13th.

  • One Thing’s for Certain – Things are Uncertain

    by Patti Dahlberg

    The Executive Committee of the Legislative Council sent out a joint release on December 21, 2020, announcing the plan to delay the 2021 legislative session due to safety concerns. The state is still under a declared statewide public health disaster emergency order, and the December COVID infection numbers are expected to remain high into January. According to the release, the plan is for the 73rd General Assembly to convene on Wednesday, January 13, as required by the Colorado Constitution and take care of any necessary business, including the swearing in of newly elected legislators. The General Assembly will then temporarily adjourn until, tentatively, mid-February when, hopefully, COVID infection rates will be lower and legislative work can continue in a more normal manner.

    What does this mean for legislators?

    No one really knows for sure. Last session, the General Assembly temporarily adjourned for six weeks only to reconvene long enough to take care of the state’s budget and other miscellaneous bills that were considered necessary. Many bills introduced as part of the normal legislative session or that had substantial fiscal impacts were “Postponed Indefinitely” or “Deemed Lost” by the end of the 2020 session. The General Assembly had to drastically shift gears upon reconvening to prioritize the passage of the budget-balancing bills needed to adjust for the revised forecasts of significant revenue loss and balance the state’s budget.

    This year is a little different in that the legislative session has not yet started, and legislators should have a better idea of the budget they will be working with for the 2021-22 fiscal year, hopefully eliminating unpleasant budget issues halfway through session. In addition, the General Assembly convened for a special legislative session in early December to pass legislation deemed necessary to help the state and its citizens weather the economic hardships of the pandemic. Having provided some relief with these bills, legislators may now have the opportunity to consider other needed legislation.

    Also, this year the temporary adjournment will be at the beginning of session. This allows the Executive Committee to adjust deadlines and clarify expectations for the bulk of the legislative session.

    Although the December bill request deadlines are behind us, there is still time for legislators who have not yet requested their last two bills to submit those requests by the Tuesday, January 19 bill request deadline. Because of the delayed start, all of the filing dates for bills have been delayed until later in the year. The Executive Committee of the Legislative Council issued a joint letter on Wednesday, December 23, 2020, explaining the new filing and introduction deadlines. The new filing deadlines are:

    Although the deadlines have been delayed, legislators still need to designate the order in which they would like their bills introduced. To be able to introduce all of the five bills allowed by rule, a legislator needs to choose one bill to be the first bill introduced, two bills to designate as early bills, and two bills to designate as regular bills. The bills, as designated, need to meet the applicable filing dates.

    This session, the plan is to have all the prefile (or first) bills and the early bills filed before the session reconvenes and ready to be introduced (read across the desk) on the first day back in session (tentatively February 16). The bills will be assigned to committees as they are being read across the desk and, with the potential for 300 bills to be introduced within a couple of days, committee work will truly begin in earnest.

    These changes to the filing deadlines mean that legislators will have more time than usual to draft and prioritize all five of their bill requests before those requests must be filed with the House and Senate. Because of the delay in the session, legislators can take a little more time to work with drafters and stakeholders to get their bills crafted early enough to enable fiscal analysts to draft fiscal notes even before the bills are filed for introduction.

    The Executive Committee is still determining how to adjust the remaining session deadlines – i.e., first house committee passage and final passage, second house committee passage and final passage, introduction and passage of the Long Bill, and many others – to keep session work moving along. Once that information is determined it will be announced.

    What we know for sure is that things are uncertain during a pandemic. Many bills were left on the side of the road last year due to extreme time constraints, budget reductions, and a shortened legislative session. And of course, until the declared disaster is lifted, everything is subject to change.

    For more information regarding bill order, see “Got Bill Requests? Next Step is the Bill Order”. But please disregard any deadlines included in the article.

  • Colorado’s $tate Budget Process

    by Carolyn Kampman, Kate Watkins, and Patti Dahlberg

    Editor’s note: This article was originally posted on March 23, 2018, and has been edited as appropriate.

    Most people associate the state budget process with a couple of long weeks during the legislative session. True, the annual General Appropriations Bill or “Long Bill” must be introduced and passed between the 76th and 94th days of session per the legislative rules, but that is only part of the state’s annual budget story. The annual passage of the Long Bill marks the completion of an extensive and collaborative effort on the part of legislators, legislative staff, executive and judicial branch departments, and the governor’s office to pass a balanced budget for the citizens of Colorado.

    Each year, Colorado’s budget process begins long before the legislative session convenes. In the summer, most executive branch departments submit budget proposals to the Governor’s Office of State Planning and Budgeting (OSPB). The OSPB reviews the proposals and makes adjustments based on the governor’s priorities and the anticipated amount of money available.

    These executive departments then submit the approved budget requests to the General Assembly’s Joint Budget Committee (JBC) by November 1. The eight judicial agencies and the executive branch departments that are overseen by an elected official (the Attorney General, the State Treasurer, and the Secretary of State) also submit their budget requests to the JBC by November 1. The JBC staff review these requests and prepare written briefings that they present to the JBC in November and December. The JBC conducts formal public hearings with each department a week or two after the JBC staff briefing to discuss department budget priorities, operations, effectiveness, and future planning.

    All JBC budget briefings, hearings, and other meetings are open to the public, broadcast over the internet, and recorded and archived. [Please note that due to the current public health emergency, JBC meetings are open to the public through audio broadcast only.] The JBC does not accept public testimony during budget hearings, but they may allow public testimony in other hearings. The JBC encourages other legislators to participate in briefings and hearings. In addition, the JBC meets with each committee of reference during the first month of the legislative session to discuss department budget requests.

    From December through mid-February, the Capital Development Committee (CDC) and the Joint Technology Committee (JTC) review capital construction and information technology project requests and priorities from OSPB and hold hearings with departments on their requests. The CDC and JTC prioritize requests, finalize recommendations, and notify the JBC. The JBC ultimately reviews these recommendations and incorporates them into the proposed Long Bill.

    From January through March, JBC analysts present department budget requests at JBC meetings and make recommendations regarding budget amounts, funding sources, and possible legislation needed to implement certain budget actions. The JBC votes on each department’s budget request and then invites departments to submit “comeback” requests to ask the JBC to reconsider specific budget decisions. Throughout the first half of the legislative session, the JBC meets almost daily to review, adjust, and reset line item appropriations to each department. Economic forecasts and other reports, department budget requests, and budget recommendations from the governor’s office help the JBC and its staff develop a “balanced budget” proposal, which includes the Long Bill and legislation included with the Long Bill, as well as bills introduced by other legislators. To do this, the JBC picks a budget forecast in March, either the Legislative Council staff’s or the OSPB’s, to budget to.

    Introduction of the Long Bill alternates between the House of Representatives, in even years, and the Senate, in odd years. The bill is typically 300+ pages and often the JBC introduces several additional bills as part of a “long bill budget package.” This is necessary because, under the state constitution (Article V, Section 32), the Long Bill can only include appropriations; it cannot include substantive changes to the statutes. So, if the JBC makes budgeting decisions that require a change to a statute, they have to introduce a separate bill to accomplish that change. For example, if the JBC decides to appropriate a certain amount for a program, but wants to improve the efficiency with which the money is distributed, the committee will introduce a bill to change the statutory distribution method.

    Once the Long Bill and any associated bills are introduced, all work in that chamber revolves around passing those bills. Committee of reference meetings and other floor work is minimized so that the legislators can meet in their party caucuses to listen to JBC presentations on the Long Bill, ask questions, and discuss amendments to the bill. It usually takes about one week for the Long Bill and its associated bills to pass each chamber. Because the second chamber almost always amends the Long Bill, a third week is required for a conference committee, which is traditionally composed of the JBC members, to meet and recommend a report that resolves the differences between the two chambers. Each chamber must then adopt the report and readopt the final version of the bill.

    After the Long Bill passes both chambers it goes to the governor to sign into law. The governor can exercise the line-item veto to veto an entire appropriation; the governor cannot use the line-item veto to increase or decrease an amount. If there are vetoes, the bill returns to the General Assembly to consider the vetoes and possibly override one or more of them.

    Once the Long Bill passes both chambers, the funding for existing programs and services is finalized and the General Assembly knows how much money is available for bills to create new programs or offer additional services. The House and Senate appropriations committees start meeting in earnest to pass or postpone indefinitely (PI) bills, many of which have been languishing in those committees awaiting passage of the Long Bill. The General Assembly tries to ensure that the total amount appropriated through the Long Bill and all enacted bills that fund new programs or services does not exceed the amount of revenue that the state is expecting to have available in the coming fiscal year.

    A more comprehensive explanation of Colorado’s budget process is available on the Joint Budget Committee Staff homepage through the budget process and budget documents links.

    Last Spring, Legislative Council staff, in conjunction with JBC staff, launched a new webpage dedicated to the state budget and the state budget process, “Explore the Colorado State Budget“. In addition to explaining the budget process and timelines, this new webpage also illustrates the state’s operating budget, budget sources, major funding requirements, state revenue sources, TABOR’s interaction with the state budget, and other budget resources and considerations. This new webpage is updated, as needed, with pertinent budget details.

    For more background on the Joint Budget Committee and Colorado’s budget process, please see “Joint Budget Committee to Write State’s Budget for the 58th Time”, posted October 26, 2017.

  • What’s so Special about a Special Session?

    by Julie Pelegrin

    Editor’s note: This article was originally posted on May 10, 2012, and has been updated with information pertaining to the upcoming special session commencing November 30, 2020.

    The Governor recently issued an executive order calling the General Assembly into a legislative special session. At this point, many legislators and other people may be wondering what, exactly, is a special session and how does it work?

    The most obvious things that are different about a special legislative session are: 1) The General Assembly is in session even though the regular, 120-day legislative session has ended, and they can remain in session as long as they choose to do so; and 2) The General Assembly is limited to addressing only certain subjects while meeting in special session.

    Governor’s Authority: Article IV, section 9 of the Colorado constitution authorizes the Governor to convene the General Assembly “on extraordinary occasions” by a proclamation, known as “the call,” that specifies the purposes for which the General Assembly is to convene. The only business the General Assembly may transact during the special session is the business the Governor specifically identifies in the call. The Governor decides what is an extraordinary occasion and sets the agenda of issues that the General Assembly may consider. The Governor’s call also sets the date and time at which the special session must begin.

    The Governor’s recent call directs the General Assembly to convene in special session at 10:00 a.m. on November 30, 2020. The Governor has identified several issues that the General Assembly may consider, all related to addressing the effects of the on-going COVID-19 pandemic:

    • Emergency tax relief to small businesses;
    • Housing and rental assistance to persons impacted by the pandemic;
    • Support for child care providers impacted by the pandemic;
    • Expanding broadband and wi-fi access for educational purposes;
    • Support for the food pantry assistance grant program;
    • Help for individuals who are unable to pay their utility bills due to financial hardship caused by the pandemic; and
    • Funding for public health expenses.

    Agenda Items: The Governor sets the agenda items, but the Colorado Supreme Court has held that he cannot prescribe the specific form of legislation; he cannot describe the agenda items so narrowly that the General Assembly is forced, in the words of the Court, “to do the bidding of the governor, or not act at all.” The General Assembly decides whether to enact legislation to address the agenda items and, if enacted, how the legislation will address the agenda items.

    It is the advice of the Office of Legislative Legal Services that the question of whether a bill or resolution fits within the agenda items is a substantive, not a procedural, question and cannot be decided by a ruling of the chair of a committee or by a ruling of the President of the Senate or the Speaker of the House of Representatives. Similar to deciding whether a bill is constitutional, the Senate and the House of Representatives decide whether a bill fits within the agenda items when they vote on the bill or resolution.

    Timing: While the General Assembly must convene on the date and time specified in the call, the General Assembly need not pass, nor even consider, any legislation while in special session, and the General Assembly decides how long the session will last. The Governor may not set a date by which the General Assembly must adjourn.

    General Assembly’s Authority: During a special session, the General Assembly retains its full plenary authority, other than being limited to considering only the agenda items. The General Assembly may convene and, after establishing the presence of a quorum, immediately adjourn. The General Assembly may consider but refuse to pass any legislation during a special session, or it may pass one or more bills that address one or more of the agenda items on the Governor’s call. The Governor has no authority to either force the General Assembly to stay in session or force the General Assembly to adjourn.

    Rules and Procedure: Although the agenda is limited, a special session operates under the same constitutional requirements and legislative rules, other than the deadline schedule, that apply during a regular session. Each bill must have a single subject; each introduced bill must be assigned to a committee and receive consideration and a vote on the merits; and the vote on second reading and the vote on third reading must occur on different calendar days, so it still takes at least three days to pass a bill. All of the legislative rules with regard to committees and the operations of the Senate and the House that apply in a regular legislative session also apply in a special legislation session.

    If you have additional questions about how the General Assembly operates during a special session, please consult the special session FAQ memo available on the Office of Legislative Legal Services website.

  • 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.

  • The Domino Effect of a Delayed Adjournment Sine Die

    By Jennifer Gilroy

    While counting only working calendar days toward the 120-day limit of the legislative session may provide the General Assembly with some relief toward achieving their “mission-critical responsibilities” after sitting out the worst (hopefully) of the pandemic, it also comes with some unintended (and not inconsequential) repercussions.  By counting only the working calendar days, the final adjournment of the 2020 regular legislative session is necessarily delayed, which, in turn, delays the 90 days following adjournment sine die, the time period the state constitution allows for a voter to file a petition to refer an enacted bill to the ballot.  That delay then compresses the period of time in which the Secretary of State and the Legislative Council Staff agency must accomplish certain mandatory procedures before the referred bill can be placed on the November 3rd ballot. Too much?  Think about it like dominos.

    The First Domino: A Delayed Adjournment Sine Die

    We had been anticipating that the General Assembly would adjourn its 2020 regular legislative session on May 6th (the scheduled 120th day).  But life as we anticipated it was unexpectedly up-ended by the pandemic, and, as a result, both chambers have been temporarily adjourned for several weeks now. It’s the current belief that the General Assembly will reconvene on May 26th and will have as many as 52 working calendar days remaining to complete its work. If the General Assembly uses all of those days and does not work on weekends or holidays, then adjournment sine die could be as late as August 6th, some 13 weeks later than expected. The first domino just tipped.

    The Second Domino: The 90-day Petition Period is Pushed Back

    Many of the bills that have already been enacted (73 bills) or that are still pending in the legislative process (226 bills) have a clause stating that the effectiveness of the act is subject to the filing of a referendum petition. That clause is based on a provision in the state constitution that allows a voter to file a referendum petition with the Secretary of State to place a bill that the legislature enacted (and that did not state that it was necessary for the immediate preservation of the public peace, health, or safety) on the November ballot.  The constitutional provision gives the voter 90 days following the legislature’s adjournment sine die to secure the required number of signatures and submit the petition and signatures to the Secretary of State. For more information on the peoples’ power of referendum click here.

    If the legislative session had not been unexpectedly interrupted by the virus, the 90th day after May 6th would have fallen on August 5th.  By comparison, if the legislature reconvenes on May 26th, adjournment sine die may not occur until August 6th, pushing back the 90th day to November 4th, one day after the general election! The first domino just toppled the second domino.

    The Third Domino: Constitutional & Statutory Procedural Requirements

    But even if the General Assembly were to adjourn sine die before August 6th, maybe as early as June 12th, it would still prove difficult, if not impossible, to get a measure on the November 2020 ballot due to the several constitutional and statutory procedural steps that must be taken after the voter files a petition and accompanying signatures with the Secretary of State’s office but before the election.   Once the petitioner has gathered the necessary signatures (or more) to place the bill on the ballot, the Secretary of State must verify the signatures.  That takes time—as much as a month according to that office.  But that’s not all, the law also requires the Secretary of State to certify the content of the ballot to every county clerk and recorder in the state at least 57 days before the election, which is September 4th this year.  So even optimistically, if the General Assembly were to adjourn sine die on June 12th, the 90th day would be September 10th, nearly a week after the secretary of state is required by law to certify the contents of the ballot to the local governments.

    And wait, there’s more!  The state constitution requires the Legislative Council Staff to prepare and distribute the blue book, an informational booklet for voters, which includes the text and a fair and impartial analysis of the measures that will be on the ballot, at least 30 days before the election. This year that means October 2nd. The constitution ensures the public’s opportunity to submit written comments for consideration by the legislative research staff in preparing the analysis, so time needs to be built into the blue book process to afford members of the public that opportunity to comment. And once that process is complete, the blue book must be approved by the Legislative Council and then finalized.  The Legislative Council meeting typically occurs the first week of September.  But you’ll recall in our optimistic scenario, the 90-day petition period would not even end until September 10th.  The domino chain reaction now appears unavoidable.

    The Fourth Domino: Bills with Petition Clauses and Specified Effective Dates

    The domino effect may be compounded if a bill with a petition clause also specifies an effective date that precedes the earliest date that the bill can take effect.  For example, several sunset bills include a petition clause but also specify an effective date of September 1st to avoid a program automatically repealing (“sunsetting”) on that date.  If the General Assembly had adjourned on May 6th as originally expected, the September 1st effective date would not have posed a problem.  However, if the General Assembly adjourns sine die even as early as June 12th, pushing the 90th day back to September 10th, the earliest a bill with a petition clause would become effective would be at 12:01 a.m. on September 11th, long after the September 1st deadline when several programs will have already gone into a wind-up period.

    To stop the inevitable results of the domino effect, bill drafters have examined the nearly 300 bills with petition clauses and are working directly with the sponsors of those bills to prepare the necessary amendments to avoid total calamity—or at least avoid the likely calamitous effects of the delayed final adjournment of the 2020 regular legislative session on those bills.

  • Supreme Court Finds General Assembly “Reasonable” in Counting Only Working Calendar Days

    By Julie Pelegrin

    As reported earlier, the General Assembly recently asked the Colorado Supreme Court to tell them whether, during a statewide public health declared disaster emergency, the General Assembly is allowed to determine the length of the regular legislative session by counting only “working calendar days” rather than consecutive calendar days. Because the General Assembly is currently in a temporary adjournment, this question of how to count the days is key to scheduling the remainder of the 2020 regular legislative session.

    Last Wednesday, the Supreme Court published its answer: Only working calendar days, “i.e., calendar days when at least one chamber is in session”, will count in determining the length of the session when the General Assembly is operating under a declared public health disaster emergency.

    As we previously explained, the voters amended the provisions of article V, section 7 of the Colorado Constitution (section 7) in 1982 to limit the length of the legislative session in even-numbered years to 140 “calendar days” and in 1988 to limit the length of all regular legislative sessions to 120 “calendar days.” The General Assembly adopted Joint Rule 23 (d) to clarify that “calendar days” are to be counted consecutively and in 2009 adopted Joint Rule 44 (g) to make the very limited exception for counting “calendar days” as only the working calendar days if the General Assembly meets in regular legislative session during a declared public health emergency.

    The Supreme Court’s decision was a 4-3 vote, so the answer was by no means a slam dunk. The analysis turned on whether the phrase “calendar days” used in the constitution is ambiguous or whether it plainly requires the calendar days to be counted consecutively from the first day of the legislative session.

    Justice Marquez, writing for the majority, concluded that the phrase is ambiguous. The Court considered the plain meaning of calendar days (i.e., days running from midnight to midnight) and the fact that the text of section 7 does not specify that calendar days are to be counted consecutively. It concluded that section 7 “may just as reasonably be construed to allot a sum of days during which the General Assembly may meet in regular session – continuously or not – to complete its work, so long as the total does not exceed 120 calendar days.”

    The Court also analyzed Joint Rule 23 (d) and Joint Rule 44 (g), first noting that, like statutes, legislative rules are presumed to be constitutional unless proven to be unconstitutional beyond a reasonable doubt. The Court specifically looked to whether the legislative rules were true to both the text and the purpose of the limitation on the length of the legislative session.

    The Court identified the purpose of the limitation as being to both preserve the Colorado tradition of a part-time citizen legislature and ensure sufficient time for the General Assembly to complete the critical work of legislating for the people of the state. The Court then concluded that the legislative rules support these purposes by defaulting to 120 consecutive days in all but the rarest of situations while allowing the General Assembly the necessary flexibility and time to legislate in response to a disaster emergency. Having already found that the text did not require calendar days to be counted consecutively, the Court held that Joint Rule 23 (d) and Joint Rule 44 (g) are consistent with the text and support the purposes of section 7 and, in combination, are a reasonable interpretation of section 7. As such, the rules are constitutional.

    As stated previously, this decision was a close call. Three of the seven justices dissented from the majority decision. Although the dissent acknowledges that the state is operating in “unprecedented times”, it cites to precedent stating, “there has never been, and can never be, an emergency confronting the state that will warrant the servants of the Constitution waiving so much as a word of its provisions.”

    In the view of Justice Samour, who wrote the dissent, section 7 is not at all ambiguous. By specifying calendar days, the provision can only mean consecutive calendar days. Justice Samour looked to the dictionary definition of “calendar day” as a consecutive 24-hour day running from midnight to midnight, and concluded that 120 calendar days must be equal to a total of 2,880 consecutive hours (120 x 24 = 2,880). The dissent also looked to the use of “calendar days” in the statutes, finding that in every instance it means consecutive calendar days even though the word “consecutive” is not included in most cases. And, when the General Assembly means something other consecutive calendar days, the statute uses another term, such as “business days.”

    The dissent also argued that, even if section 7 is ambiguous, by adopting Joint Rule 44 (g), the General Assembly is in essence amending section 7. And the General Assembly cannot by rule or statute amend the constitution; only the people can do that.

    Finally, the dissent feared the majority opinion opens a “Pandora’s Box,” setting a precedent that future legislatures may abuse. While concerns about how a future legislature may apply the majority opinion may be well-founded, there is language in the majority opinion that arguably limits how far a future legislature can go in interpreting section 7 as allowing something other than consecutive calendar days.

    The majority decision is narrowly written and does not give the General Assembly carte blanche to change the counting of calendar days in any circumstance it chooses. The Court made the point that the very limited conditions under which only working calendar days are counted are outside the control of the General Assembly and specifically stated that “a broader rule untethered to an external event such as a public health crisis or otherwise readily susceptible of legislative manipulation would be less likely to further the purposes of article V, section 7 and could be unconstitutional.”

    So, while it is clear that so long as the current public health disaster emergency continues the General Assembly can count only the working calendar days in calculating the 120 calendar days of the 2020 regular session, its ability to do so under different circumstances in the future remains questionable.

  • How Did We Get Here? Tips for Researching Legislative History

    Editor’s note: This article was originally posted December 10, 2015. It has been updated for the 2020 Legislative Session.

    by Julie Pelegrin

    As legislators, lobbyists, and stakeholders are working through this session’s bills, many may wonder, “Is this really a new idea, or has someone tried this before?” Or maybe someone’s looking to strengthen an existing statute and wondering, “When did they first pass this statute, and has it always had these problems?” The answers to these questions are easily found with just a bit of research. The key is knowing where to look.

    Bill Title Histories

    Every bill introduced in every regular and special legislative session since 1997 is available on the General Assembly’s website under the “Bills” tab. For 2016 to the present session, use the search box in the blue bar to search for a bill by the bill number, sponsor name, or keywords. If you’re not looking for a specific bill, you can also take a look at the bills that are sparking the most interest in the “Most Accessed Bills” box.

    Or you can look at groups of bills by general subject area in the “Browse by Subject” box. Only bills from the current or most recent session will appear from the initial search, but you can use the new search box that appears above your search results to find bills from a different year by subject area, going back to 2016:

    In the “Session” box you can use the arrow menu to choose “All” to create a list of bills from 2016 to the present in one search.

    For bill information from legislative sessions before 2016, click on “Prior Sessions” in the “BILLS” pull down menu at the top of the page or click on the “Prior Sessions” icon toward the bottom of the “Bills” page.

    The bills are organized by year, and the database of each year’s bills is searchable.

    Once you choose the year you wish to search, you can search for a keyword or phrase by clicking “Search” near the top of the page.A legislator may also ask an Office of Legislative Legal Services (OLLS) drafter to search the OLLS database of bill and resolution titles, which goes back to 1999. This search identifies bills and resolutions that included a particular term or phrase in their titles.

    Legislative History

    Just knowing whether a bill has been introduced to address your topic is not enough. It’s also helpful to know how the bill was amended, who testified for or against it, what issues were debated, and whether the bill passed. This information is also available, but it may take a bit of digging.

    For bills introduced from 2016 to the present, once you find the bill you wish to research, use the bar below the “Status” bar to access:

    • “Bill Text” – all versions of the bill;
    • “Fiscal” – all versions of the fiscal note written for the bill;
    • “Committees” – all of the committee reports on the bill, including the vote tallies for each report;
    • “Votes” – House and Senate floor votes on the bill;
    • “Amendments” – any amendments offered and whether the amendment passed (only available for bills starting in 2019); and
    • “Bill History” – the history of the bill, which lists the committees the bill was assigned to, each action taken on the bill, and the date of each action.

    For prior session bills (1997 to 2015), once you find the bill you wish to research, click on the designated links to access:

    • All versions of the bill;
    • The history of the bill, which lists the committees the bill was assigned to, each action taken on the bill, and the date of each action;
    • All versions of the fiscal note written for the bill;
    • All of the committee reports on the bill, including the vote tallies for each report; and
    • The third reading vote tallies for the bill. When you click on the third reading vote link, it takes you to the House or Senate Journal page for the day on which the House or Senate voted on the bill on third reading. You can use “Control F” on your keyboard to search for a bill number or scroll through the journal pages until you find the bill you are researching.

    • To find a summary of a committee hearing on a bill, click on “Committees” at the top of the page. Next, click on “Summaries by Bill,” then select your bill, and you will see the bill summaries for each committee of reference that heard the bill. Click on the arrow next to the committee name to get to the committee’s documents. Click on “Bill Summary,” and you will see a short summary of the bill discussion, any testimony provided on the bill, any amendments offered, the vote tally on each amendment, and the final vote tally on the bill.

    Each bill summary also shows the date of the committee hearing and the times at which the bill sponsor spoke, witnesses testified, and the committee took action on the bill. This is important information if you want to listen to the testimony or debate. The state has recordings of committee hearings going back to 1973. The General Assembly website has digital audio recordings of committee hearings from 2011 to the present available on its “Watch & Listen” page. To listen to an audio recording of a committee hearing held before 2011, you must contact state archives.

    You may also be able to watch or listen to the floor debate on a bill. Use the bill history to identify the date on which a bill was considered on second or third reading. Then, on the General Assembly homepage, click “Watch & Listen” in the top right corner of the page. Then click on the “Go To Colorado Channel” home page link, choose “House” or “Senate” under the “View Past Sessions” option, then scroll down to the year tabs or scroll down to the bottom of the page and click on the “View More” option. Click on the year and session date you want. To the right of the date there are links to that legislative date’s calendar and journal entry. Video and audio recordings of floor sessions go back to the 2008 session. To listen to floor sessions prior to 2008, you must contact state archives. You will need to be able to provide their staff with a bill number or desired dates of recordings. In addition, there may be a fee for record requests prepared by state archives staff.

    Source Notes

    If you want to know when a statute was originally enacted and how it has been changed since then, you must check the statute’s source note.

    Every section of the Colorado Revised Statutes has a source note immediately following its text that indicates the year the section was added, any year in which it was changed, which provision of the section was changed, where in the Session Laws to find the bill that made the change, and the effective date of the change. For more of the specifics on interpreting source notes, see page vi at the beginning of each printed volume of the Colorado Revised Statutes or check out this memo on the OLLS home page. There’s also a very handy chart for decoding source notes.

    If the source note tells you that your section has been amended, use the reference to the Session Laws to look up the bill that amended the section. For example, if the source note says “L. 2019: (6.5) amended, (HB19-1014) ch. 11, p. 42, §1, effective January 20, 2020,” open the 2019 Session Laws of the State of Colorado to page 42 and you’ll find the bill that amended the section. Online, go to the “LAWS” tab and choose “Session Laws”. On the new page choose the “2019 Regular Session” view and click on the PDF link to the right of the appropriate bill or chapter number. Source notes have included the number of the bill adding, amending, or repealing a statute since 2009. For source note information prior to 2009, you’ll need to use the listed chapter or page number to find the bill or statute in the Session Laws. In the online Session Laws from 2016 to present, clicking on the “Bill Topic” listing on a bill will link you back to the bill’s information page, which includes the different versions of the bill and its history of passage.

    For Session Laws from 1993 to 2015, click on the “Session Laws Prior to 2016” link. At the bottom of the list of Session Laws, there is a link to the University of Colorado’s William A. Wise Law Library, which provides digital access to the 1861 to 1992 Session Laws.

    See also “Do It Right – Researching Legislative History: What to Look For and Where to Find It”, posted March 22, 2012.

  • History in the Making: A Temporary Adjournment and Interrogatories

    By Julie Pelegrin

    Since we last posted, everything has come to a screeching halt – sort of. Last Saturday, the General Assembly took the extremely rare step of adjourning for two weeks in the middle of the regular legislative session. The existence of a declared epidemic disaster emergency and the need to implement drastic measures to mitigate the spread of COVID-19 led the General Assembly to make this serious move.

    So why is this step so rare? The Colorado constitution prohibits both the House and the Senate from adjourning for more than three days, unless they both agree. On Saturday, both houses passed House Joint Resolution 20-1007, which temporarily adjourned both houses until March 30, 2020.

    This type of temporary adjournment wasn’t always such a rare occurrence. There was a time when it was fairly common for the General Assembly to adjourn for more than three days to a date certain (as opposed to adjourning sine die, which ends the session) during a regular legislative session. These temporary adjournments would occur for a variety of reasons, generally to manage the legislative session and provide time to develop policy or return to consider vetoes.

    So what changed? In 1988, the General Assembly referred Senate Concurrent Resolution No. 1 to the ballot to amend section 7 of article V of the state constitution. At that time, this section of the state constitution limited regular legislative sessions convened in even-numbered years to 140 calendar days; there was no limit on the length of sessions during odd-numbered years. The amendment changed the language to limit all regular legislative sessions to 120 calendar days.

    And that’s one of the reasons why this temporary adjournment is so serious: How long may the regular legislative session continue after the General Assembly reconvenes? Section 7 of article V of the Colorado constitution limits the regular legislative session to 120 calendar days. But exactly what does that mean?

    Only the Colorado Supreme Court can provide a definitive answer to that question. Fortunately, there’s a constitutional process for asking.

    Section 3 of article IV of the Colorado constitution describes the Supreme Court’s authority and specifically directs the Court to give “its opinion upon important questions upon solemn occasions when required by the governor, the senate, or the house of representatives …” While the language sounds like the Court must answer these questions — they’re officially referred to as “interrogatories” — whenever posed, the Court actually has great discretion in deciding whether to answer. The Court decides whether a question is really important and whether the occasion is sufficiently solemn.

    Since Colorado became a state in 1876, the General Assembly has sent interrogatories to the Supreme Court 88 times. The Court agreed to answer all of the questions posed 58 times, agreed to answer some of the questions eight times, and refused to answer 15 times. The governor has sent interrogatories to the Supreme Court 47 times. Nineteen times, the questions were related to legislation that was either pending in the legislature or sitting on the governor’s desk awaiting his signature. The other 28 times, the governor was asking questions that were not directly related to legislation. Most of the time – 33 out of the 47 – the Supreme Court agreed to answer the interrogatories.

    In what appears to be the first interrogatory submitted in Colorado, the General Assembly asked about the constitutionality of certain provisions of the state constitution concerning water. The Supreme Court refused to answer because the interrogatory did not relate to pending legislation. Also, the Court did not find the situation grave or urgent enough to warrant giving an answer. Most recently, the Court has agreed to answer questions about the nature of certain federal funds and the authority to appropriate them, and whether voter approval is required to approve a certain type of funding mechanism for transportation. In both situations, the questions were related to pending legislation.

    Generally, in deciding whether to accept interrogatories, the Supreme Court has said the interrogatory must “be connected with pending legislation, and relate either to the constitutionality thereof or to matters connected therewith of purely public right.“

    So, returning to the question at hand concerning the meaning of 120 “calendar days,” on Saturday, the General Assembly passed House Joint Resolution 20-1006 asking the Supreme Court to answer the following question:

    Does the provision of section 7 of article V of the state constitution that limits the length of the regular legislative session to “one hundred twenty calendar days” require that those days be counted consecutively and continuously beginning with the first day on which the regular legislative session convenes or may the General Assembly for purposes of operating during a declared disaster emergency interpret the limitation as applying only to calendar days on which the Senate or the House of Representatives, or both, convene in regular legislative session?

    On Monday, March 16, the Supreme Court accepted the interrogatories. The General Assembly, the Governor, the Attorney General, and any other interested persons are invited to submit briefs by Tuesday, March 24. Sometime after that, the Supreme Court will issue its answer. Stay tuned!

  • Sunset Review: When the Regulatory Day is Done

    by Julie Pelegrin

    Consistently throughout the history of the world, two events have never failed to occur on a daily basis: sunrise and sunset. Having covered regulatory “sunrise” last week, it’s only fitting that we now discuss regulatory “sunset.” Before the General Assembly begins regulating a profession or occupation, it requires a study to ensure that the regulation will be in the public interest. Similarly, once regulatory bodies and functions are created, the General Assembly requires periodic review to ensure that they continue to serve the public interest.

    The law requires all advisory boards and the regulatory divisions, boards, and agencies, and some functions, in the Department of Regulatory Agencies (DORA) to repeal based on a schedule specified in the statute. In the common vernacular, this schedule of repeals is called a “sunset” provision, i.e., the sun sets on the agency, board, or function, and it ceases operating. According to DORA’s website, the term “sunset” in reference to this process was actually coined in Colorado in the 1970s. The Colorado Office of Policy, Research and Regulator Reform (COPRRR) within DORA handles the sunset process.

    How does it work?

    When a new advisory board is created in any department or a new division, board, agency, or function is created within DORA, the new entity or function is scheduled for repeal within 10 years. Approximately two years before that repeal date, COPRRR begins the review process, which includes research, writing, legislation, and rule-making.

    Generally, the review process focuses on two issues: 1) Is there a public need for the entity or function; and 2) Is the regulation that the entity or function imposes the least restrictive, consistent with the public interest?

    COPRRR must consider several factors in answering these questions. In addition to specifically looking at public safety and interest protections and the necessary level of regulation, the factors include:

    • The entity’s efficiency;
    • The degree to which the entity actually works with and represents the interests of the public and not just the regulated occupation;
    • How the regulations impact the economy and competition within the regulated occupation;
    • Whether the requirements for entering the occupation encourage affirmative action;
    • Whether the regulation takes into account prior criminal history and whether it uses this information to protect the public or to protect the occupation; and
    • Whether administrative and statutory changes are necessary to improve the entity’s operations and better serve the public interest.

    In completing the research, COPRRR will collect data; review the pertinent literature, statutes, and rules; and solicit information from and meet one-on-one or in small groups with a wide variety of public and private interested persons. The COPRRR website includes an online comment form that anyone can use to provide input.

    When the research is completed, the reviewer writes a sunset report, which must be submitted to the Office of Legislative Legal Services by October 15 of the year before the entity or function is scheduled to repeal. The report generally consists of background information and recommendations for statutory and regulatory changes. The report also recommends whether the entity or function should continue or be allowed to repeal. A division, board, agency or function may be continued for up to 15 years before the next review; an advisory board may be continued indefinitely. If the COPRRR recommends significant statutory or administrative changes, it is more likely to recommend a shorter continuation time to review whether the changes are effective.

    The OLLS drafts a bill to implement the statutory recommendations made in the sunset report. The Speaker of the House, in even-numbered years, or the President of the Senate, in odd-numbered years, selects a committee of reference to review the sunset report and the bill draft.

    The committee of reference holds a public hearing on the drafted—but not yet introduced—bill and the COPRRR’s report. These hearings usually occur in January soon after the legislative session starts, but may occur before session starts. At the hearing, personnel from the COPRRR present, and the committee typically takes public testimony on, the report and the bill draft. The committee may adopt amendments to the bill draft before deciding whether to approve the bill draft for introduction. The committee must base its decisions concerning the bill on the same factors that the COPRRR considered in making its recommendations.

    If the committee approves the bill draft for introduction, the committee chair assigns at least one legislator—who may or may not be a member of the committee—to sponsor the bill. If it’s a House committee of reference that approves introduction of the bill, the bill starts in the House, and the Senate President assigns one or two Senators to be Senate sponsors. If a Senate committee of reference approves introduction of the bill, the bill starts in the Senate, and the Speaker of the House assigns one or two Representatives to be House sponsors. Sunset bills do not count against a legislator’s five-bill limit, but a legislator cannot be the prime sponsor of more than two sunset bills regarding divisions, boards, agencies or functions in a single legislative session.

    When a sunset bill is introduced, it must be assigned to the same committee of reference that held the initial sunset hearing on the bill draft. After introduction, sunset bills are like any other bill; they may be amended and they must pass both houses and be approved by the Governor before they can become law. While the bill as drafted must reflect the recommendations in the sunset report, the General Assembly may amend the bill in any manner that fits within the single subject stated in the bill title.

    If the committee does not approve introduction of the bill or the sunset bill does not pass, then the repeal takes effect in July or September of the year after the COPRRR issues its report. An advisory board ceases operations immediately upon the repeal date. But the repeal of a division, board, agency, or function actually starts a one-year wind-up period. The entity or function continues to operate just to finish its business until the following July or September when the entity ceases to exist or the function ceases to operate. A license issued or renewed during this wind-up year, and any other outstanding licenses, expire when the entity or function actually ceases.

    Think of the wind-up year as the twilight. At the end of the year, the regulatory sun finally drops below the horizon, and everything goes dark. After that, only the General Assembly can make the sun rise again on that piece of government.