by Jennifer Gilroy and Michele Brown

A librarian at the Sturm College of Law (at the University of Denver) recently 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. Say what?

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 do 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 linger 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 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. From 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.

by Nate Carr

Each year a small, one-page bill works its way through the legislative process. It’s typically at the front of the legislative bill line, so to speak, and frequently has the honor of gracing the Governor’s desk before many of the other bills have even been heard in the first committee. This bill doesn’t trigger front-page headlines; it rarely, if ever, even makes the news. Why then, does this seemingly insignificant little bill get pushed through the legislative process so quickly?

Well, this little bill has a big job – enacting the compilation of the state’s laws known as the Colorado Revised Statutes (C.R.S.). Each year the Committee on Legal Services, the legislative committee responsible for overseeing the publication and printing of the Colorado Revised Statutes, sponsors this bill. It is formally titled as a bill Concerning the enactment of Colorado Revised Statutes [Year] as the positive and statutory law of the state of Colorado; however, it is commonly referred to as the “publications bill.” The publications bill enacts the official printed version of the C.R.S. as the positive and statutory law of the State of Colorado. But why is it necessary to enact the C.R.S. annually?

The answer to that question requires some background information. Once the General Assembly adopts a bill, the enrolling room and the Office of Legislative Legal Services (OLLS) prepare the bill in Act form for presentation to the Governor. Bills that the Governor signs, or that he does not veto, become law and are known as Acts. In the months following the adjournment of each legislative session, the OLLS staff, under the direction of the Revisor of Statutes, incorporates the newly enacted laws into the body of law published in the preceding year’s C.R.S. In addition, staff makes revision changes to correct nonsubstantive grammatical or punctuation errors, harmonizes conflicting bills, and adds voter-approved statutory changes. The Revisor also ensures that the C.R.S. are properly constructed, annotated, and indexed. The authority and guidelines that the Revisor follows to prepare the C.R.S. are located in articles 4 and 5 of title 2 of the Colorado Revised Statutes. Once the publications process is complete, the OLLS sends the data with the new, updated body of law to the state’s official contract printer who prints and distributes the updated sets of Colorado Revised Statutes.

At the legislative session following the printing of the C.R.S., the General Assembly and the Governor move quickly to pass the publications bill. The bill does not change substantive law and may not be used as a vehicle to repeal or otherwise amend legislation enacted by a prior General Assembly or to amend a bill being considered during the same legislative session. Passage of the publications bill usually occurs within a few weeks after the start of the legislative session. Once enacted, the updated C.R.S., as printed by the state’s official contract printer, is deemed to have been properly collated, edited, revised, and constructed. The text of the newly updated C.R.S. becomes legal, irrefutable evidence of the state’s statutory law in a court of law. Without passage of the publications bill, provisions of the published C.R.S. are merely prima facie evidence of the statutory law that may be contradicted or rebutted by other evidence.

Back to the question, why is it necessary to enact the C.R.S. annually? Enactment of the publications bill ensures that there is one, comprehensive body of primary statutory law for the state of Colorado on which courts and the public may rely. Without passage of the publications bill, all other bills would need to amend not only the last enacted version of the C.R.S., but also the Session Laws for each subsequent year in which a bill amends the same section of law. Eventually, it would become virtually impossible to know or understand what the statutory law of the state actually is. The publications bill may be a little bill, but it achieves a giant result!

by Jennifer Gilroy, Revisor of Statutes

When you access information on the internet, how reliable do you think it is? What if the source of the information you’re looking at is the state or federal government? Do you think you can rely on its accuracy or authenticity? What if it’s the Colorado law and you found it on the Colorado General Assembly’s website? Seems like it should be reliable, right? Maybe not.

The savvy internet user knows that the reliability of even government-published legal materials on the internet can be questionable. So in 2011, the National Conference of Commissioners on Uniform State Laws proposed a uniform act that would require a government publisher of electronic legal materials to meet certain standards before the government agency could designate the materials as an “official” version. The act, called the “Uniform Electronic Legal Material Act” (UELMA), was immediately embraced by the Colorado legislature, which was among the first in the nation to enact it. See House Bill 12-1209.

In their official comments to UELMA, the uniform law commissioners observed that providing information on line is integral to conducting state government in the 21st century. But they also acknowledged that changing to an electronic environment raises new issues in information management. In their prefatory note, the commissioners stated:

[e]lectronic legal information moves from its originating computer through a series of other computers or servers until it eventually reaches the individual user. The information is susceptible to being altered, whether accidentally or maliciously, at each point where it is stored, transferred, or accessed. Any such alterations can be virtually undetectable by the consumer. A major issue raised by the change to an electronic format, therefore, is whether the information presented to consumers is trustworthy, or authentic.

To address this concern and establish reliable, outcomes-based electronic resources, the commissioners drafted UELMA to guide would-be government publishers of official electronic legal materials.

As drafted by the uniform law commissioners and as adopted by the Colorado General Assembly, UELMA requires an official publisher of legal material in an electronic format to meet the following three conditions before it may designate the material as official:

1. The official publisher must authenticate the legal material in the electronic record;
2. The official publisher must provide for the preservation and security of the record; and
3. The official publisher must ensure that the material is reasonably available for public use on a permanent basis.

For purposes of Colorado’s UELMA law, the General Assembly is the “official publisher” of the state constitution, the Colorado Session Laws, and the Colorado Revised Statutes. So long as the General Assembly continues to publish these legal materials in a printed format, it does not have to designate the electronic version as official or meet the UELMA requirements. However, before the General Assembly may designate an electronic version of any of the legal materials it publishes on line as official, it must meet the three prerequisites.

As part of its contract with the Colorado General Assembly to print and distribute the official Colorado Revised Statutes books, LexisNexis also hosts the on-line version of Colorado’s statutes. However, the General Assembly has not designated this electronic version of the statutes as an “official” version of the law. In fact, statute provides that only the print version of the Colorado Revised Statutes may be viewed as “official” statutes and is entitled to be considered as evidence in Colorado courts. In other words, the on-line version of Colorado’s statutes does not meet the requirements of UELMA and is not, therefore, “official”.

Enter the Legislative Digital Policy Advisory Committee (LDPAC). In 2013, the General Assembly enacted legislation creating the LDPAC. See House Bill 13-1182. This committee, comprised of staff from all three branches of government, was initially charged with developing a plan to digitize archived audio recordings and a plan to implement UELMA. In 2014, the General Assembly re-established the LDPAC and, adding three members to the committee, directed it to continue studying and make recommendations to the Joint Budget Committee and the Committee on Legal Services regarding the implementation of UELMA, including authenticating certain legislative electronic legal materials such as the Colorado Session Laws and the Colorado Revised Statutes. See House Bill 14-1194.

The LDPAC has met three times this year and recently issued its first progress report. In studying the issue, the LDPAC is researching the technology and government resources that the other states that have adopted UELMA (now 10) are using to authenticate their electronic legal material, including the associated costs as well as the advantages and disadvantages the various governmental agencies have experienced in the process. The LDPAC’s final report is due October 1, 2015. Thereafter, expect legislation and, in the not-too-distant future, the designation of an on-line version of the Colorado Revised Statutes as official!

The main goal of the Legislative Session is to pass bills. So what happens to a bill once the bill sponsors have championed it through both houses? Sure, it goes to the Governor for his signature, but why does it take so long to land on his desk? (more…)

by Kathy Zambrano

You’re flipping through the 2013 C.R.S. book looking for that amended section that was key to getting a bill passed last session, and there it is, in black and ecru, but you also find stuff following the section. What is that stuff and why is it there? (more…)

by Patti Dahlberg

Once the 2013 Legislative Session winds to a close, you may be looking for some tools to help you review and decipher the products of the last one hundred twenty legislative days. The OLLS is already working on several publications to organize and present the legislation that results from the First Session of the Sixty-ninth General Assembly. (more…)

by Kathy Zambrano and Richard Sweetman

With the close of the 2012 Regular Legislative Session, and the First Extraordinary Legislative Session of 2012, the question now is, “What changes did the General Assembly make to the law of Colorado?” To answer this question, the OLLS is well on the way to publishing the bills enacted during the legislative session and republishing the Colorado Revised Statutes (C.R.S.). Each summer, the OLLS organizes the bills passed in the preceding legislative session and publishes them as the Session Laws. The Office also incorporates the enacted changes into the statutory database and republishes the C.R.S. by the fall of each year. (more…)

by Jennifer Gilroy

Have you ever experienced frustration trying to locate a particular law in the Colorado Revised Statutes or a certain provision of the state’s constitution because you can’t quite seem to navigate these on-line resources as easily as you would like? By the time you read this, the on-line version of the Colorado Revised Statutes and related Colorado legal resources, accessible through the Colorado General Assembly’s home page and hosted by LexisNexis, will be vastly different and greatly improved in intuitive navigability, functionality, and content. (more…)