Sunrise Reviews
Sept. 28, 2007
By Jerry Kopel
How to make words work for you, or not.
CRS 24-34-104.1 (6) "The general assembly shall not consider the
regulation of more than five occupations or professions in any one
session of the general assembly."
This statute requires the Dept. of Regulatory Agencies (DORA) to review
the application of an occupation or profession not presently regulated,
make a public document regarding what it found, and provide its
recommendation for or against regulation.
Before you read any further, what do you assume the word "consider"
means? Keep it in mind as you continue.
Here is a small playlet: Thanksgiving dinner for him and her.
He: Please consider the turkey.
She: All right. (She stares at the mass of meat wondering if it had been
cooked properly, stuffed with something inedible, and who would get most
of the white meat.)
He (angrily): Fool! When I said "please consider the turkey" I obviously
meant "please pass the turkey."
In June of 1999, one of my columns reviewed nine legislative bills that
I believed fit under the definition of "consider", and which therefore
created problems for five of the measures that did become law, since
they exceeded the limit of five "considered".
Senate President Ray Powers was concerned enough to ask the Legal
Services office for an official memorandum on the issue. The report was
issued in August of 1999 and held that:
(1) if there was a state statute that
required the conduct of a member of the profession or occupation in
the performance of acts that were part of the profession or
occupation, then it was already regulated and need not go through
the Sunrise process; and
(2) the Legal Services office believes the word "consider" as used
in the statute to be ambiguous, possibly with four interpretations.
The one chosen by the Legal Services office was:
"In any given session, the general assembly
may not enact more than five bills dealing with the regulation of
new professions and occupations."
"Members would be allowed to introduce an unlimited number of
Sunrise bills. However, no more than five would be allowed to PASS
(emphasis added) through both houses and become law."
The Sunrise process began in 1985 and survived
without any problem by going through a standing interim committee which
had time to ask penetrating questions and provide credibility to a
recommendation to the legislature. In most cases, if the committee voted
"no", the legislature voted "no".
That standing committee was repealed by amendment passed in 1996. Also,
the law was changed to "consider" no more than five such bills per
legislative session.
The Legal Services office in their 1999 memorandum recognized that there
are ambiguities regarding "regulated" and "consider" and concluded "the
wording....is sufficiently ambiguous that the Sunrise law may have
numerous interpretations both with respect to its scope and the nature
of its restrictions on the legislative process."
In newspaper articles that followed, both Senate President Ray Powers
and House Speaker Russ George promised there would be changes made in
the 2000 session.
Nothing happened. No bill to do anything was introduced. I know from
discussion with the memorandum's author that this was a disappointment.
Occupations reviewed under the 1976 Sunset process still in effect are
ones already licensed, registered, certified, or labeled within a data
base by the state. Occupations that go through the Sunrise process seek
to become part of the later Sunset review. To get there, they have to
seek licensing, registration, certification or data basing.
Two changes would avoid further disputes. (1) Change "consider" to
"pass". (2) Define "regulation" to mean the process whereby an
occupation becomes licensed, registered, certified, or labeled within a
data base by the state.
A third change would avoid term-limited eight-year legislative veterans
from watching 40 new licensing occupations. Change "five" to "three" and
possibly avoid the following licensing types present in California in
1993:
Bedding renovators, hypodermic needle and syringe distributors, tax
interviewers, furniture retailers, burglar alarm system agents and
company operators and managers, private patrol operators, athletic
events announcers, box office employees, and ticket sellers, to name a
few.
(Jerry Kopel served 22 years in the Colorado House and was chief sponsor
of the 1976 Sunset law and the 1985 Sunrise law.) |