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.”

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!

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: Peggy Lewis and Matt Dawkins

Imagine it’s six months from now, the leaves are just starting to turn, there’s a hint of fall in the air, and you get a call from a constituent who wants to know, “What was the intent of the legislature in passing that bill?” That’s actually a much more difficult question to answer than it might seem at first blush. (more…)