Colorado LegiSource

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

Category: Publications

  • What Happens to a Statute Declared to be Unconstitutional?

    Editor’s note: This article was last posted April 7, 2022 and has been updated as needed.

    by Jennifer Gilroy and Michele Brown

    Several years ago, a librarian at the Sturm College of Law (at the University of Denver) called our office to ask what happens to a statute when an appellate court declares it unconstitutional. Perhaps he figured the Revisor of Statutes would simply and unceremoniously strike it from the books. Or maybe he thought that the legislature would automatically know and run a bill to repeal the offending provision of law. But it doesn’t exactly work that way. In fact, Colorado has several “unconstitutional” laws still on the books.

    To understand the reason for this phenomenon, it’s necessary to go back to basic 8th grade American Government class. State government, like the federal government, is split into three branches: The executive branch, the judicial branch, and the legislative branch. One cannot do the work of the others. While the executive branch may enforce the law and the judicial branch interpret the law, only the legislative branch may write the law or, in this case, repeal it. Therefore, despite the fact that the highest court in the land may have determined that a Colorado statute (or a section of the state constitution) is unconstitutional, only the legislature may take the statute off the books by bill. The constitution may be amended—even if the amendment is to remove a provision declared to be unconstitutional—only if the change is approved by a majority of voters voting on a ballot measure or on a measure referred to the voters by the General Assembly. The court cannot require the repeal.

    Legislators in the Colorado General Assembly may introduce only five bills during each regular legislative session. (See Joint Rule 24 (b)(1)(A)). As a result, many legislators who have so many things they want to accomplish during their brief, term-limited tenure at the state capitol may not want to “spend” one of their five bills on a housekeeping matter, as it were. Are you starting to see why some of these laws linger on the books long after they should? In fact, in Colorado dozens of statutory and constitutional provisions that courts have held to be unconstitutional still remain on the books.

    How does the average reader of our laws, then, know whether a statute or constitutional provision is really “good law”? The General Assembly’s legal staff in the Office of Legislative Legal Services vigilantly reads all of the appellate opinions issued by the Colorado Court of Appeals, the Colorado Supreme Court, the United States District Court for the District of Colorado, the United States Court of Appeals for the 10th Circuit, and the United States Supreme Court looking for opinions construing Colorado’s law and, in particular, opinions declaring any provision of Colorado law unconstitutional. The Office’s legislative lawyers and legislative editors write brief summaries of every court’s holding that interprets a provision of Colorado law. These “annotations,” as they are called, are then published in the official Colorado Revised Statutes (also found online) immediately following the section of law that is the subject of the court’s ruling.

    If the court has actually determined that the provision of law is unconstitutional, the Legal Services staff will include a special editor’s note, which the reader will see immediately following the source note at the end of the section of law. The editor’s note notifies the reader that this provision has been held to be unconstitutional and provides the citation to the case so construing the law. The staff will also include an editor’s note if, for example, the U.S. Supreme Court has determined another state’s statute to be unconstitutional and that state’s statute is substantially similar to a Colorado statute. [For an example, see the editor’s note regarding an Arizona statute after §18-1.3-1201]

    But, unless it’s reported in the news, how does a legislator know that one of Colorado’s laws has been found to be unconstitutional? Well, in addition to writing annotations and editor’s notes regarding the court’s holding, the Legal Services staff also provides the members of the state legislature with a quarterly report of recent judicial opinions of note. The Notice of Judicial Opinions provides the members with information about recently issued appellate court opinions construing Colorado law and, if any opinion addresses the constitutionality of a state law, it is highlighted in the report. Through this report, members of the legislature are notified that an appellate court has determined that a law on the books is unconstitutional and is therefore “ripe” for repeal. Finally, Legal Services staff also tweets about significant court rulings when they are released.

    The decision whether to sponsor a bill to repeal an unconstitutional law is ultimately the decision of each individual legislator. Nevertheless, so long as an unconstitutional law remains on the books, the editor’s notes and the annotations will notify the reader of the court’s decision and, by extension, the status of the law.

  • What happens when multiple bills amend the same provision of law?

    What happens when multiple bills amend the same provision of law?

     by Bethanie Pack

    Editor’s note: This article was originally posted on March 15, 2019. It has been updated where appropriate.

    It’s very common for multiple bills to amend the same provision of law in a given session, because let’s face it, great minds think alike, and there are a lot of great minds in our state legislature. So, when this occurs, one of five things can happen:

    1. The bills are harmonized upon publishing;
    2. Provisions are renumbered;
    3. The bills are amended without need of a conflict letter from the Revisor of Statutes;
    4. The Revisor of Statutes issues a conflict letter to the bill sponsors of both bills notifying them of the conflict and that their drafters can provide guidance to the bill sponsor on how to address it; or
    5. As a last resort, one of the bills supersedes the other.

    So what in the world does all this mean? Let me explain.

    After a bill passes second reading in each house, the publications team (a team in the Office of Legislative Legal Services that works under the direction and supervision of the Revisor of Statutes) performs a database search against all other bills in the current legislative session to ensure no bills change the same provision of law in a conflicting manner.

    Harmonize

    If only Bill A and Bill C are adopted, then the publications team can harmonize the section upon publication, and there is no conflict. In other words, the two bills “play nice together.” The section would appear as:

    45-1-101. Residential watering. A homeowner may water the lawn for a maximum of one hour up to five times per week.

    The changes from both bills can be combined in this section and they can be harmonized.

    Renumber/Reletter

    Now, ignore Bills A, B, and C for a moment, and take as an example two bills that both add a subsection (2) to the current version of 45-1-101. If both bills pass, one of them will be renumbered to add a subsection (3).

     Conflict Letter

    Back to our original example.  If both Bill A and Bill B were to pass, they cannot be harmonized; there is a conflict. The section of law cannot state that a homeowner may water the lawn both three and five times per week. In this scenario, the Revisor of Statutes writes a conflict letter, as directed by Joint Rule 16, to give notice of conflicting provisions to the prime sponsors of the conflicting bills.

    These letters are sent to the prime sponsors and the conflict is noted in the transmittal letter sent to the opposite house after third reading in the first house. A copy of the letter is also stapled to the billback. The letter contains a statement about the conflict and a statement that the bill drafters know about the conflict and can provide guidance on how to address the issue.

    The publications team runs the conflict check after second reading in each house, which sometimes gives the drafter enough time to confer with the prime sponsor and draft a third reading amendment to fix the conflict. This quick action by the drafter would eliminate the need for a conflict letter before the bill is transmitted to the opposite house.

    Typical resolutions to conflicts by amendment include mirroring the language in both bills to make them harmonizable, making the conflicting provision in one bill contingent on the passage of the other bill so that both provisions don’t go into effect, or eliminating the conflicting provision or moving it to a different place in statute. But sometimes, none of these approaches will work because the bill sponsors don’t agree to the amendments that would harmonize the bills or because harmonizing the bills would defeat the purposes of the bills. In these situations, the legislators may decide to allow one bill to supersede the other.

    Supersede

    The goal of the publications team is to give effect to every bill. So, allowing one provision of law to supersede another is the last resort and done only if an amendment to fix the issue was not adopted. If two bills pass that cannot be harmonized, renumbered, or relettered, and they were not amended to “play nice together,” then one bill will supersede the other where the conflicting provision occurs. Which provision takes effect is typically based on the effective dates of the bills—the amendment with the later effective date prevails. Occasionally two conflicting bills will have the same effective date, in which case the provision that prevails is the one in the bill that the Governor signs last. In some cases, however, the bill with the earlier effective date will prevail because it repeals the provision. A bill that repeals a provision will supersede a bill that amends the same provision, even if the amending bill has a later effective date, because the repealed provision is gone by the time the amending provision takes effect, and it cannot be brought back to life to implement the amendment.

    For more information on effective dates, see “When Does an Act become a Law? It depends.”

  • What does it take to get a bill to the Governor?

    What does it take to get a bill to the Governor?

    by Kathy Zambrano and Anja Boyd

    You’d think that once a bill makes it through both houses and the first house concurs with second house changes, if necessary, the bill would land on the Governor’s desk in a day. But in most cases, there’s a lag time of up to five working days – oftentimes more as we move to the end of the legislative session – before an enacted bill gets presented to the Governor for action. So what really happens to a bill before it is delivered to the Governor on act paper?

    First thing to know is that, pursuant to Rule 18 of the Joint Rules of the Senate and House of Representatives, “the enrolling clerk of the originating house and the Office of Legislative Legal Services shall coordinate and work together jointly to prepare the bill as passed in final form. The Office of Legislative Legal Services shall prepare the bill in the form in which it shall appear in the session laws. . . “. So over the years, the House and Senate enrolling rooms and the OLLS have developed a process that allows for the efficient preparation of the bills on act paper and the development of the Session Laws.

    Once the enrolling room receives a bill for enrolling into an act, they verify sponsors before delivering the bill to the Publications Team in the OLLS. But before they can even do that, they typically prioritize their other work to focus on engrossing bills as they pass on second and third reading, since those bills must be made available the same day they pass on the floor, and on preparing preamended bills that are reported out of committees so that those are available to legislators and the public as soon as possible.

    Once the Publications Team receives the bill for enrolling, they begin processing the bill by checking the bill for errors that may be fixed by correction schedule[1]. Then they input the bill’s information into the bill disposition tables and the Red Book, which is a tabulation of all C.R.S. sections affected by bills passed during the legislative session. The bill disposition tables and the Red Book are mandatory parts of the Session Laws, which are prepared by the OLLS following each legislative session as required by statute. By preparing the red book entries at this point, it allows the Publications Team to determine whether new statutory sections added in the bill need to be renumbered to make room for other new statutory sections added by other bills and which provisions need to be harmonized or superseded. This is the beginning of the steps in preparation of the Colorado Revised Statutes.

    Once the Publications Team finishes with the bill, they deliver it to the subject matter team in the OLLS that is responsible for the bill to prepare an advance unofficial copy. The subject matter team reviews the bill attachments for completeness and accuracy as a courtesy to the House and Senate front desks, then they verify which version of the bill should be enrolled, check the sponsors on the bill, input any conference committee report changes that were adopted, make sure all amendments that were passed appear in the bill, and check to ensure that no current law has been dropped and that all new language appears in capital letters. If they find grammatical or punctuation errors, they include those on the correction schedule before making any corrections in the copy. If the subject matter team is enrolling a bill during the legislative session, then other session-related work often takes priority, like bill and amendment preparation, so there could be delays.

    When the unofficial copy of a bill is ready, it is delivered to the enrolling room for proofing. Yep, the bill is proofed yet again even though it has been proofed after each reading during its travels to become a final act. The enrolling room also checks sponsorship of the bill and ensures that any corrections to the bill and any conference committee report that was adopted appear in the copy. Great care is taken to ensure that the bill is correctly enrolled.

    When the enrolling room completes their proofing, they deliver the bill to the Publications Team again; the Publications Team reviews it and determines whether further grammatical or punctuation corrections need to be made. The bill is then put on act paper by the subject matter team, subject to other priorities. The act paper copy, which is the version of the bill the Governor receives for signing, is then delivered to the appropriate enrolling room.

    Now that the enrolling room has the final act copy, they prepare a fancy bill jacket that goes along with the act to the Governor’s office. But before it goes to the Governor, there are a few more stops on a bill’s journey to the Governor’s desk. First, if it’s a House bill, it goes to the Speaker of the House of Representatives and Chief Clerk for their signatures and then to the President of the Senate and the Senate Secretary for their signatures. If it’s a Senate bill, the President and Senate Secretary get to sign first. And, of course, messages are prepared to notify the body that the bill was signed by the Speaker or President, if the legislative session is still in progress.

    So then, after all of that action takes place, the enrolling room contacts the Governor’s office and makes arrangements for someone to be physically present in the Governor’s office to sign for and receive the bill.

    And now you know what really happens before a bill lands on the Governor’s desk.

     

    ____________________________________________________________________

    [1] The correction schedule is a list of grammatical and punctuation errors that may appear in a bill, along with numbering changes required due to other bills amending the same section, which are automatically corrected when the bill is enrolled into an act.

  • What Happens to a Statute Declared to be Unconstitutional?

    Editor’s note: This article was originally posted October 8, 2015.

    by Jennifer Gilroy and Michele Brown

    Several years ago, a librarian at the Sturm College of Law (at the University of Denver) called our office to ask what happens to a statute when it is declared by an appellate court to be unconstitutional. Perhaps he figured the revisor of statutes would simply and unceremoniously strike it from the books. Or maybe he thought that the legislature would automatically know and run a bill to repeal the offending provision of law. But it doesn’t exactly work that way. In fact, Colorado has several “unconstitutional” laws still on the books.

    To understand the reason for this phenomenon, it’s necessary to go back to basic 8th grade American Government class. State government, like the federal government, is split into three branches: The executive branch, the judicial branch, and the legislative branch. One cannot do the work of the others. While the executive branch may enforce the law and the judicial branch interpret the law, only the legislative branch may write the law or, in this case, repeal it. Therefore, despite the fact that the highest court in the land may have determined that a Colorado statute (or a section of the state constitution) is unconstitutional, only the legislature may take the statute off the books by bill. The constitution may only be amended—even if the amendment is to remove a provision declared to be unconstitutional—if the change is approved by a majority of voters voting on a ballot measure or on a measure referred to the voters by the General Assembly. The court cannot require the repeal.

    Legislators in the Colorado General Assembly may introduce only five bills during each regular legislative session. (See Joint Rule 24 (b)(1)(A)). As a result, many legislators who have so many things they want to accomplish during their brief, term-limited tenure at the state capitol may not want to “spend” one of their five bills on a housekeeping matter, as it were. Are you starting to see why some of these laws linger on the books long after they should? In fact, in Colorado dozens of statutory and constitutional provisions that have been held to be unconstitutional still remain on the books.

    How does the average reader of our laws, then, know whether a statute (or constitutional provision) is really “good law?” The General Assembly’s legal staff at the Office of Legislative Legal Services vigilantly reads all of the appellate opinions issued by the Colorado Court of Appeals, the Colorado Supreme Court, the United States District Court for the District of Colorado, the United States Court of Appeals for the 10th Circuit, and the United States Supreme Court looking for opinions construing Colorado’s law and, in particular, opinions declaring any provision of Colorado law unconstitutional. The Office’s legislative lawyers and legislative editors write brief summaries of every court’s holding that interprets a provision of Colorado law. These “annotations,” as they are called, are then published in the official Colorado Revised Statutes (also found online) immediately following the section of law that is the subject of the court’s ruling.

    If the court has actually determined that the provision of law is unconstitutional, the Legal Services staff will include a special editor’s note to that effect, which the reader will see immediately following the source note at the end of the section of law. The editor’s note notifies the reader that this provision has been held to be unconstitutional and provides the citation to the case so construing the law. The staff will also include an editor’s note if, for example, the U.S. Supreme Court has determined another state’s statute to be unconstitutional and that state’s statute is substantially similar to a Colorado statute. [For an example, see the editor’s note regarding an Arizona statute after §18-1.3-1201]

    But unless it’s reported in the news, how does a legislator know that one of Colorado’s laws has been found to be unconstitutional? Well, in addition to writing annotations and editor’s notes regarding the court’s holding, the Legal Services staff also provides the members of the state legislature with a quarterly report of recent judicial opinions of note. The Notice of Judicial Opinions provides the members with information about recently issued appellate court opinions construing Colorado law and, if any opinion addresses the constitutionality of a state law, it is highlighted in the report. Through this report, members of the legislature are notified that an appellate court has determined that a law on the books is unconstitutional and is therefore “ripe” for repeal. Finally, Legal Services staff also tweets about significant court rulings when they are released.

    The decision whether to sponsor a bill that would repeal an unconstitutional law is ultimately the decision of each individual legislator. Nevertheless, so long as an unconstitutional law remains on the books, the editor’s notes and the annotations will notify the reader of the court’s decision and, by extension, the status of the law.

  • Contracting for the Publication of the Colorado Revised Statutes

    by Jennifer Gilroy

    Have you ever stopped to wonder how those pretty red statute books, the Colorado Revised Statutes, are published? As you can imagine, it’s very important that citizens have access to the law. So important, in fact, that the state constitution requires the General Assembly to publish the laws it passes at each legislative session. The General Assembly satisfies this requirement by annually publishing the Session Laws of Colorado, a three-volume set of books in which every bill enacted during a legislative session is published.

    In addition, the statutes that are created, amended, or repealed in each of those bills are then codified by subject matter in the collective body of Colorado law known as the Colorado Revised Statutes (CRS)—the previously mentioned red books on your book shelf and at public libraries and courthouses. There are 26 volumes including a two-volume index and a two-volume publication of the Colorado Court Rules.

    The legislature’s Office of Legislative Legal Services (OLLS) prepares the databases for both the Session Laws and the CRS, by making the necessary changes in the former year’s CRS database to reflect the additions, changes, and repeals resulting from the work of the General Assembly during the legislative session.  The work of the OLLS in preparing the CRS also includes drafting the history (or “source”) notes, the editor’s notes, and the annotations of relevant appellate court opinions for each statutory section of law. Once the OLLS has completed compiling the Session Laws and the CRS—which takes a lot of meticulous work and time (the law needs to be published accurately!)—the OLLS sends the giant databases to the contract printer to format, print, bind, and distribute. But who is the contract printer, how is the contract printer selected, and when?

    Like most things, the actual printing of the Session Laws and CRS are governed by state statute. The statute requires that the contract must be bid and awarded in a manner directed by the Committee on Legal Services (Committee), a bipartisan committee of ten legislators, five each from the Senate and the House of Representatives. The Committee must employ standard bidding practices to select the contract printer. Historically the Committee has done so through the use of a request for proposals or “RFP” process.

    The governing statute also sets some limits on the contract. For example, the term of the contract may not exceed five years.  The statute allows a contract to be extended once for up to five more years, but requires the contract to be rebid no less frequently than every 10 years.  Since 2002, the Committee has awarded the print contract to LexisNexis out of Charlottesville, Virginia. The contract awarded to LexisNexis in 2002 was for five years, and the Committee extended it in 2007 for an additional five years.  In 2012, the Committee put the print contract out to bid as required by the statute, and the Committee awarded a five-year contract to LexisNexis. That contract was extended for an additional five years in 2017.

    So now another 10 years have lapsed, and the Committee must once again put the print contract out for bid because the current extension will expire December 31, 2022. The RFP process is lengthy and requires a significant amount of the Committee’s time. Therefore, meetings for the OLLS to advise the Committee about the RFP process, for the Committee to review the RFP before it is published, and for the Committee to meet with those who submitted proposals and select a contract printer must begin sooner than later. The Committee will have its first meeting to address the publications contract on March 25, 2021, with more meetings to follow over the summer and fall months. Once the Committee selects a contract printer, the OLLS will negotiate the actual terms of the contract with the successful bidder and draft the contract. The statute requires the state controller and the attorney general to approve the contract, and, ultimately, the contract must be executed by a representative of the selected contract printer and the chair of the Committee.

    It’s a long and time-consuming process but one that is intended to provide fairness, transparency, and reliability in the quality of the final products: The Session Laws and the Colorado Revised Statutes.

  • United States Supreme Court Equates Annotators to Legislators and Judges

    By Michele Brown

    In a case that began in Georgia in 2017, the U.S. Supreme Court concluded last Monday that copyright protection for original works of authorship does not extend to the annotations included in Georgia’s official annotated code.

    As background, the State of Georgia sued Public.resource.org (PRO) after PRO purchased a copy of the Official Code of Georgia Annotated (OCGA) and posted it online in its entirety. The District Court for the Northern District of Georgia determined that the Georgia statutory annotations were, in fact, original works entitled to broad copyright protection.

    However, PRO, an organization whose mission is to increase access to government materials, appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit). The question before the Eleventh Circuit was whether to treat the annotations in the OCGA in the same manner under copyright law as a legislative enactment or a judicial opinion. It is uncontested that legislative enactments and judicial opinions are not copyrightable, because they represent the exercise of sovereign power and are therefore considered part of the public domain. This policy is referred to as the government edicts doctrine. In October of 2018, the Eleventh Circuit concluded that the OCGA annotations were sufficiently “law-like” to be regarded as a sovereign work and therefore not copyrightable. For more in-depth explanations of the facts and issues in this case, see our earlier LegiSource articles published April 2017 and December 2019.

    Georgia appealed that ruling to the highest court and, on April 27, the Supreme Court released its 5-4 decision, split along unusual lines. Chief Justice John Roberts wrote the majority opinion, joined by Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh.

    The Supreme Court upheld the decision of the Eleventh Circuit but for different reasons.  Instead of examining whether written material carries “the force of law,” the Court instead focused on whether the author of the work is a judge or a legislator, observing that, whatever work that judge or legislator produces in the course of judicial or legislative duties is not copyrightable. Under the government edicts doctrine, judges and legislators are not considered the authors of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether the written material carries the force of law. And, according to the Court’s majority opinion, it applies to the annotations because they are authored by an arm of the legislature in the course of its official duties.

    Justice Clarence Thomas dissented, joined by Justice Samuel Alito and for the most part by Justice Stephen Breyer, arguing that Georgia’s annotations do not purport to embody the will of the People because they are not the law. Georgia’s General Assembly does not enact statutory annotations under its legislative power.

    The core question for Justice Ruth Bader Ginsberg, joined in her dissent by Justice Breyer, was whether Georgia’s annotations are created in a legislative capacity. Her answer? “No.” The role of the legislature encompasses the process of making laws—not construing statutes after their enactment. Justice Ginsberg observed that annotating begins only after lawmaking ends. In her view, annotations are descriptive rather than prescriptive, and they merely provide the public with convenient references.

    As noted in a previous LegiSource article, the outcome of this case does not directly affect Colorado. In 2016, the Committee on Legal Services suspended the practice of copyrighting the annotations to the Colorado Revised Statutes. The Committee recognized that, unlike most states, Colorado’s nonpartisan legislative staff in the Office of Legislative Legal Services writes the annotations. Because the annotations are the product of state-paid legislative staff and are available at no cost on the Colorado General Assembly’s public access website, the Committee elected to suspend the historical practice of registering a copyright in the editorial work of the legislative staff, including the annotations.

  • C.R.S. Books vs. C.R.S. Online: Why Aren’t They the Same?

    by Jennifer Gilroy

    Recently it came to my attention that a significant change in the law took place right after the Office of Legislative Legal Services (Office) had approved the proof print for the final title of the Colorado Revised Statutes (C.R.S.) and sent it off to our printers, LexisNexis, for formatting, printing, and distribution.  At that moment I knew the beautiful set of burgundy-colored leatherette soft-bound volumes that this office had worked on so meticulously for the preceding three months would be sadly out of date the moment they would be delivered.

    You might wonder how the Office didn’t know that there would be a change in the law and account for it in the official publication.  It is because, on occasion, bills are written in anticipation of an event that is expected to occur at some unknown time in the future.  That event is the trigger for a new law to take effect or for an existing law to repeal. For example, a bill creating a new program may provide that the new law will not take effect until the federal Department of Health and Human Services grants a waiver to the state Department of Human Services to implement the program that the bill creates.  In that situation, the drafter typically includes a provision in the law directing the executive director of the state Department of Human Services to notify the revisor of statutes when the triggering event has occurred, and, with that notice, the new law comes to life.  However, if the triggering event—or even the receipt of the notice of the triggering event—occurs after August 10th, it is too late to change the books.  August 10th is the cut-off date by which the Office must approve the final proof print for the publication of the Official C.R.S. No changes can be made to the printed C.R.S. thereafter.

    This is particularly frustrating when I receive a notice to the revisor after August 10th, but I learn from the notice that the triggering event (the approval of the waiver in my example) actually occurred a month or two earlier when the Office could have identified in an editor’s note that the triggering event had occurred and that the law is effective.  Instead, however, the reader only sees the law printed in the books, accompanied by an editor’s note that reads, “As of the publication date, the revisor of statutes has not received the notice referred to in subsection (1).”  When the reader sees that type of note, he or she does not know whether the law is in effect or merely pending the event.  It’s even more confusing when the triggering event ultimately results in the repeal of a law already on the books.  In that situation, the reader can see the law published in the official statutes, but the editor’s note does not help the reader understand whether the law is still in effect.

    On the other hand, the online version of the C.R.S. is much more nimble and can be easily updated to reflect that the triggering event has occurred and that the law in question is now in effect or repealed, as the case may be. Working with our partners at LexisNexis, the Office can update the editor’s notes and remove repealed law that is no longer effective on a real-time basis. But should the online version, accessible through the General Assembly’s website, be different from the C.R.S. books?

    For years I have struggled with that dilemma for two reasons: One, I’ve historically believed that both the book version and the online version of the C.R.S., in addition to the DVD, should be

    identical so that two different people reading the law published by the General Assembly don’t see two different versions. Second, the books are still the only “official” version of the Colorado’s

    An example of statutory language referencing notification to the revisor of statutes and the accompanying editor’s note.

    primary statutory law. See §2-5-118, C.R.S. Until the legislature can ensure compliance with the three requirements of the Uniform Electronic Legal Material Act (See article 71.5 of title 24, C.R.S.) to allow the online version to also be an “official” source of the primary statutory law, those lovely burgundy leatherette books remain the only official version of Colorado’s statutory law. But, while the online version cannot be official, it could be more up-to-date.

    After significant rumination on the subject, I have decided to change my historical approach of keeping all versions of the C.R.S. the same, and begin updating the online version as new information becomes available that will affect the law presented in the C.R.S. This decision is based primarily on a belief that public expectations likely favor timely online updates to reflect the current state of the law. Most people recognize that the books cannot be updated and changed as information becomes available over the course of the year without costly errata supplements, but they presume a vibrant website source can be. Therefore, going forward, the Office will update the online statutes as we receive notices that indicate a change in the law has occurred.

    What to take away from this article?  I recommend that when doing research, feel free to conduct your research using the online version of the C.R.S. (https://leg.colorado.gov/colorado-revised-statutes) to see the most updated state of the law. But for official court filings or other formal business, confirm the text with the official version in the books. If you are still in doubt, call the Office of Legislative Legal Services.

  • Statutory Annotations Take Center Stage Before the U.S. Supreme Court

    By Jennifer Gilroy

    To listen to the news you would think the U.S. Supreme Court was concerned only with Second Amendment rights in hearing oral arguments last Monday. But they actually saved some energy for a vigorous discussion about copyrighting the annotations to state statutes.

    As we explained in LegiSource in April of 2017 (it takes a while for a case to wend its way from the trial court to the U.S. Supreme Court), while the text of the statutes is not copyrightable, most parts of the federal and state codes are accompanied by “ancillary works” such as editor’s notes, source notes, and, most substantively, annotations that summarize appellate court cases interpreting the statutes. Up to now, most states have routinely filed a copyright on these writings, recognizing them as original, individual expressions that have a “modicum of creativity” (the general standard for copyrighting material). But now, the assumption that these writings are copyrightable is called into question.

    Our earlier article explained that the State of Georgia sued Public.resource.org (PRO) after it purchased a copy of the Official Code of Georgia Annotated (OCGA) and posted it, in its entirety, online. Georgia claimed this posting infringed on Georgia’s copyright of the annotations.[1] As explained in the earlier article, Georgia successfully defended against PRO’s motion for summary judgment in the case pending before the District Court for the Northern District of Georgia. The District Court determined that the Georgia statutory annotations are, in fact, original works entitled to broad copyright protection.

    PRO, an organization whose mission is to increase access to government materials, appealed that ruling to the U.S. Court of Appeals for the Eleventh Circuit (Eleventh Circuit). The question before the Eleventh Circuit was whether it should treat the annotations in the OCGA in the same manner under copyright law as a legislative enactment or a judicial opinion. It is uncontested that legislative enactments and judicial opinions are not copyrightable because they represent the exercise of sovereign power. Because they are written by the People’s representatives, they are in effect written by the People and are therefore part of the public domain. This policy is referred to as the government edicts doctrine.

    In October of 2018, the Eleventh Circuit observed that the issue before it was a “close one,” acknowledging that there were important considerations of public policy at stake on both sides. Ultimately, however, it concluded that the annotations in the OCGA were sufficiently “law-like” to be regarded as a sovereign work and therefore not copyrightable. In reaching this conclusion, the Eleventh Circuit stated that: The annotations clearly had authoritative weight in explicating and establishing the meaning and effect of Georgia’s law; the procedures by which the annotations were incorporated in the OCGA bore the hallmarks of legislative process, namely bicameralism and presentment; and Lexis, with which the Georgia Code Revision Commission contracted to draft the annotations, did so pursuant to highly detailed instructions set out in the contract.

    Last March, the state of Georgia petitioned the United States Supreme Court (the Court) for a writ of certiorari, posing the question whether the government edicts doctrine extends to, and thus renders uncopyrightable, works that lack the force of law such as the annotations in the OCGA. The Court granted Georgia’s petition. Over the spring, summer, and fall, there were 33 amicus briefs filed. The amicus brief filed by Lexis even included a citation to the April 2017 LegiSource article. After the briefing schedule concluded, the Court heard oral arguments on December 2nd. We anxiously await the Court’s ruling likely sometime before June next year.

    However, as explained in the previous article, the outcome of the case will not directly affect Colorado. In 2016, the Committee on Legal Services suspended the practice of copyrighting the annotations to the Colorado Revised Statutes. The Committee recognized that, unlike most states, Colorado’s nonpartisan staff in the Office of Legislative Legal Services writes the annotations. Because the annotations are the product of state-paid legislative staff and are made freely available on the Colorado General Assembly’s public access website, the Committee decided a copyright was not appropriate.

     

    [1] For purposes of this case, “annotations” includes “history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.”

  • So How Do Those Amendments Get Into Your Bill?

    By Bethanie Pack

    Each bill faces a long, arduous journey from introduction to the Governor’s desk, a journey that many bills do not complete. But for those that do, this week’s article maps the process and provides some behind the scenes info on how the work gets done.

    Amending Stages of a Bill

    Committee Reports

    In the first house, a bill is introduced by reading the title and bill number (the first of three readings) and is then assigned to committee. Bills are often amended in committee, sometimes with multiple amendments. The Legislative Council staff merges the adopted amendments into a committee report for each bill. These committee reports are read across the House or Senate desk (within three legislative days after the hearing) and then published on the General Assembly’s website. At this point, the Enrolling Room —staff of the House or the Senate whose job it is to enroll each bill by inputting the amendments— merges those amendments into the introduced bill, creating an unofficial preamended version of the bill, which shows what the bill will look like if the committee report is adopted on second reading. If the bill is sent to multiple committees, there will be an unofficial preamended version of the bill after each committee report is read across the desk, which will include all the amendments adopted in each committee to date. Unofficial preamended versions of each bill are available on the General Assembly’s website. Click here for more information on committees of reference.

    Second Reading

    On second reading, the first house Committee of the Whole typically adopts the committee report(s) and sometimes passes additional amendments. Once the first house adopts the Committee of the Whole report, the Enrolling Room merges all of those amendments into the bill, creating the Engrossed version of the bill. Sometimes the Committee of the Whole lasts for many hours and late into the night, and nothing that the Committee of the Whole does is final until the first house adopts the Committee of the Whole report. For example, if Bill A is amended and passed by the Committee of the Whole at 10 a.m. but the Committee of the Whole continues working and is still debating Bill Z at 10 p.m., the amendments to Bill A are not yet adopted and the Enrolling Room cannot create the Engrossed version. The Engrossed versions of the bills are only available after all the bills on the second reading calendar have been addressed, the Committee of the Whole concludes their work, and the first house—sitting as the House or the Senate—adopts the Committee of the Whole report.  Click here for more information on the Committee of the Whole.

    Third Reading

    Generally, third reading amendments are only technical clean-up amendments. If the first house does adopt an amendment on third reading, it can be enrolled into the bill immediately after the bill is passed, creating the Reengrossed version. These amendments are a top priority for the Enrolling Room so that the bill can be transmitted to the second house as soon as possible. Click here for more information on third reading.

    This process is then repeated in the second house. The only difference is that the bill is called Revised after second reading in the second house and Rerevised after third reading.

    Behind the Scenes

    After a bill is amended on the House or Senate floor, staff presses a couple of buttons and then sends the bill off to the printer, right?

    Actually, no. At least four sets of eyes proofread and check the amendments before the amended bill goes to the printer. This process could take minutes or hours depending on the complexity, length, and number of amendments that were passed that day.

    The House and Senate Enrolling Rooms merge the amendments into the bills, and then there is a meticulous proofing process between the Enrolling Rooms and the Publications Team in the Office of Legislative Legal Services before sending the bills to the printer.

    Overview of the Process

    The role of the Enrolling Rooms is to verify that all of the amendments are placed into the bill in the correct place. Next, the Publications Team reviews the amendments in the bill for formatting and publications issues. They are looking for things such as numbering discrepancies, coding errors, punctuation errors, and effective date problems. Then, the amendments are given further review by the drafter whose role is to check the amendments within the context of the bill for any legal or substantive issues. This is important because amendments are confidential until moved and often multiple amendments from different legislators are adopted. The drafter needs to make sure the bill remains cohesive with the added amendments.

    Why so many steps?

    It would be lovely if there was a magical button or fairy dust that placed 105 amending instructions into a 40-page bill, but instead, the process is done manually to catch publishing issues and legal issues that a computer wouldn’t catch. Basically, the process is set up to ensure the best work product possible for the General Assembly, and that means lots of eyes on the bills throughout every step of the process, from the first draft to the Governor’s signature.

    Did you know?

    • Once the Enrolling Room and Publications Team “approve” the bill with the amendments merged in, it goes public online right away.
    • You can look at the bill with the committee amendments before the committee report is adopted on second reading. It’s called a preamended version. It’s an unofficial version, but it’s a helpful tool.
      • It’s available after the committee report is read across the desk and the process discussed above is completed.
      • You can find unofficial preamended versions on the General Assembly’s website when you search for the bill, scroll down to the “Bill Text” section, and then toggle the “Preamended Versions” dropdown menu.

  • What Happens When Multiple Bills Amend the Same Provision of Law?

    by Bethanie Pack

    It’s very common for multiple bills to amend the same provision of law in a given session, because let’s face it, great minds think alike, and there are a lot of great minds in our state legislature. So, when this occurs, one of five things can happen:

    1. The bills are harmonized upon publishing;
    2. Provisions are renumbered;
    3. The bills are amended without need of a conflict letter from the Revisor of Statutes;
    4. The Revisor of Statutes issues a conflict letter to the bill sponsors of both bills notifying them of the conflict and how to address it; or
    5. As a last resort, one of the bills supersedes the other.

    So what in the world does all this mean? Let me explain.

    After a bill passes second reading in each house, the publications team (a team in the Office of Legislative Legal Services that works under the direction and supervision of the Revisor of Statutes) performs a database search against all other bills in the current legislative session to ensure no bills change the same provision of law in a conflicting manner.

    Harmonize

    If only Bill A and Bill C are adopted, then the publications team can harmonize the section upon publication, and there is no conflict. In other words, the two bills “play nice together.” The section would appear as:

    45-1-101. Residential watering. A homeowner may water the lawn for a maximum of one hour up to five times a week.

    The changes from both bills can be combined in this section and they can be harmonized.

    Renumber/Reletter

    Now, ignore Bills A, B, and C for a moment, and take as an example two bills that both add a subsection (2) to the current version of 45-1-101. If both bills pass, one of them will be renumbered to add a subsection (3).

    Conflict Letter

    Back to our original example.  If both Bill A and Bill B were to pass, they cannot be harmonized; there is a conflict. The section of law cannot state that a homeowner may water the lawn both three and five times a week. In this scenario, the Revisor of Statutes writes a conflict letter, as directed by Joint Rule 16, to give notice of conflicting provisions to the prime sponsors of the conflicting bills.

    These letters are paper copies delivered to the desks of the prime sponsors upon transmittal to the opposite house after third reading. A copy of the letter is also stapled to the billback. The letter contains a statement about the conflict and a statement that the bill drafters know about the conflict and can provide guidance on how to address the issue.

    The publications team runs the conflict check after second reading in each house, which sometimes gives the drafter enough time to confer with the prime sponsor and draft a third reading amendment to fix the conflict. This would eliminate the need for a conflict letter before the bill gets transmitted to the opposite house.

    Typical resolutions to conflicts by amendment include mirroring the language in both bills to make them harmonizable, making the conflicting provision in one bill contingent on the passage of the other bill so that both provisions don’t go into effect, or eliminating the conflicting provision or moving it to a different place in statute. But sometimes, none of these approaches will work because the bill sponsors don’t agree to the amendments that would harmonize the bills or because harmonizing the bills would defeat the purposes of the bills. In these situations, the legislators may decide to allow one bill to supersede the other.

    Supersede

    The goal of the publications team is to give effect to every bill. So, allowing one provision of law to supersede another is the last resort and done if an amendment to fix the issue was not adopted. If two bills pass that cannot be harmonized, renumbered, or relettered, and they were not amended to “play nice together,” then one bill will supersede the other where the conflicting provision occurs. Which provision takes effect is typically based on the effective dates of the bills—the amendment with the later effective date prevails. Occasionally two conflicting bills will have the same effective date, in which case the provision that prevails is the one in the bill the Governor signs last. In some cases, however, the bill with the earlier effective date will prevail because it repeals the provision. A bill that repeals a provision will supersede a bill that amends the same provision, even if the amending bill has a later effective date, because the repealed provision is gone by the time the amending provision takes effect, and it cannot be brought back to life to implement the amendment.

    For more information on effective dates, see “When Does an Act become a Law? It depends.”