Jerry Kopel

Jeanne Faatz' decision to eliminate a number of archaic statutory provisions has a lot of merit. Her bill, HB 1020, by Rep. Faatz and Sen. Hopper is entitled "Concerning the Repeal of Outdated Provisions of Law Resulting From the Law's Obsolescence, Infrequency of Use, or Inapplicability to Current Society." It runs 54 pages, covers 12 Titles, and 19 Articles.

While there might be some substantive controversy about the bill's removal of bounties for killing coyotes and wolves, the really important question is: "Does this bill conform to the constitution's single subject requirement?" If not, it might require four or five bills to complete the task.

Article 5, Section 21, of the constitution states : "No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed."

"Single subject" is a matter the legislature has to think about. The legislature placed Referendum A on the November ballot, and it passed.

This constitutional amendment requires a single subject for initiated constitutional and statutory laws as well as constitutional amendments proposed by the legislature, with one difference: Initiated measures don't get on the ballot unless the title-setting committee determines it meets the single subject requirement. There is no such hurdle for legislative-initiated constitutional amendments, or for bills passed by the legislature.

The Supreme Court holds, by case law, that any bill passed by the legislature is presumed constitutional. The burden of proving otherwise is on the opponents, and that burden was met in the most important recent decision on "single subject" legislation , In Re HB 1353, decided June 11, 1987.

The title of HB 1353 really sets the stage: "Concerning An Increase in the Availability of Moneys to Fund Expenditure Priorities for the 1987 Regular Session of the General Assembly Through Reallocation of Funds, Program Cuts, Expenditure Reductions, Use of Revenue from Unclaimed Property, and Increases of Fees." Whew!

Aware there could be problems, the legislative declaration in Section 1 said the bill comports with the single subject requirement of Article V, Section 21, and decisions of the Colorado Supreme Court interpreting that requirement.

The bill was 44 pages long and included such disparate subjects as reducing contributions to state employee retirement funds, charging prison inmates for each medical visit, eliminating the comparable salary survey for state employees, ending winter payment to old age pensioners for increased heating expenses, transferring severance tax funds to the general fund, and revising the formula for Medicaid reimbursement to nursing homes. All told, twenty different subjects. The bill became law on June l,1987 without the signature of the governor.

Attorney General Duane Woodard took on his own political party in a display of integrity and bravery, joining as "friend of the court" in support of the interrogatory by Governor Romer to the court. Woodard declared the bill violated the single subject clause of the constitution.

The court agreed, and laid down some guidelines:

l. The purpose served by limiting a bill to a single subject is to make EACH legislative proposal depend upon its OWN merits for passage.

2. It enables the governor to determine whether to exercise veto power related to a single subject.

3. The fact that there is a "single common feature" in the sense of finding additional moneys, or reducing expenses, in order to fund certain priorities, doesn't qualify as "one subject".

4. Numerous and diverse subjects, each of significance, transcends any common characteristic of financial impact.

4. For subjects to be necessarily or properly connected, the "connection" has to be logical.

Once the court declared the bill unconstitutional, the legislative leadership responded quickly. Separate bills on each subject were introduced. None reached the House floor until the House Republican Caucus had 33 binding votes for passage of each and to deny any Democratic amendments. As far as I can tell, nearly all the substitute bills passed.

And of course, there was retaliation against AG Woodward, which eventually led to his switching parties, running as a Democrat for re-election in 1990. (Duane Woodard returned to the Republican fold in 1994.)

My concern about whether HB 1020 is a "single subject" stems from an analysis published by the Colorado Legislative Council in 1994 discussing Referendum A.

In 1988, 1990, and 1992, Roger Walton and I prepared amendments to the Colorado constitution to repeal obsolescent language. The last one we got through the legislature and approved by the voters in 1992 was entitled: "Amendments to Articles 7,9,11,12....Concerning the Repeal of Obsolete Constitutional Provisions."

In a background statement on Referendum A, the Legislative Council states: "The type of proposals submitted by the legislature in recent years to remove obsolete provisions from the constitution might be considered to contain more than one subject. Under Referendum A, these ballot issues might not have been allowed unless they were changed to reduce their scope."

It's obvious that in the best of all worlds a bill shouldn't leave the legislative drafting office until it has met the "single subject" requirement. However, the drafting office doesn't have control over spur-of-the-moment amendments offered to bills in the House and Senate. I can assure you there are laws presently on the statute books that didn't meet the "single subject" requirement.

But in 22 years of serving in the House, I cannot recall any Speaker or chairman of the Committee of the Whole ever ruling a bill or amendment out-of-order as not falling within the single subject rule. Such a motion from the floor would be proper as a "point of order", although in fairness, if there is doubt as to a bill's validity, the bill should then be laid over until there is a review by the legislative drafting office as to whether the bill or amendment to the bill violated the "single subject" rule.

Of course, an "easy" out is to say "it's a decision for the courts." With the presumption of legislative legitimacy, bills are only going to be court-tested if they invade the governor's prerogative or someone's special interest. I think chances are quite slim that any group, except possibly some sheep or cattle ranchers, would challenge HB 1020 in court.

"Single subject" does require some tough self-discipline. Now that it is the law for voter-driven initiatives, it's even more important for the legislature to live up to the same standard they have set for the public.


Jerry Kopel writes a weekly column for the Statesman based on 22 years past experience as a Colorado legislator.

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