Jerry Kopel

by Jerry Kopel

The chance that Gov. Bill Owens will call the legislature into special session in 2004 is still possible but less probable as the weeks go by. The governor can certainly suggest the legislature amend Article 10 of the constitution dealing with TABOR on taxation and Article 9 dealing with funding for schools. However, he cannot require the legislature to act only by passing a constitutional amendment to be placed on the ballot.

Under Article 4, Section 9 "The governor may, on extraordinary occasion, convene the general assembly, by proclamation, stating therein the purpose for which it is to assemble; but at such special session no business shall be transacted other than that specifically named in the proclamation...." That language was in the original constitution of 1876.

By case law, the governor may not prescribe the "specific" form that the legislation will take. In an 1896 case the court said "he (the governor) has no more authority to...specify the particular character of the amendments that were to be voted upon, than he would have had to have prepared the bills, and attached them to his call, and directed the legislature to have passed or rejected the same without amendment. Such specific instructions can, at best, be regarded as advisory only, and not limiting the character of legislation that might be had upon the general subject..."

In summarizing preceding case law, the state Supreme Court in 1982 (with one partial dissent) held in Empire Savings vs. Otero Savings " The principle to be derived from these cases is that the governor may define the appropriate subject matter for legislative consideration, but he may not prescribe the SPECIFIC FORM (caps supplied) that the legislation will take....The governor cannot so narrow the matter for legislative consideration that the General Assembly is forced to do the bidding of the governor or not act at all."

In other words, the governor cannot force the legislature or deny the legislature the right to use constitutional amendments or bills to respond to his "call".

Another approach to a special session is under Article 5, Section 7. "The general assembly shall meet at other times written request by two-thirds of the members of each house to the presiding officer of each house to consider only those subjects specified in such request." The legislature may have used Article 5, Section 7, but certainly not within the past 50 years.

Since the legislature is not limited to constitutional amendments, but just to subject matter, there could be a number of bills changing statutes to achieve the goals sought.

In preparing for a special session, legislators should ask Legal Services for court decisions on both special sessions and the former "Governor's Call" . The "call" was part of Article 5, Section 7 and was used by the governor to determine what subjects would be considered during even numbered years in the legislature. The language was deleted by the voters in 1982.

Memorials did not have to be on the Governor's Call. The same rule should apply to special sessions. To the extent that former legislators who have died have not yet been honored, legislators might use the special session to honor them.

It is amazing how many possible joint resolutions to Congress one can find in the wording of the Governor's proclamation. It's like the game we used to play in school when the teacher gave you a long word and said "see how many other words you can make out of it."

(Jerry Kopel served 22 years in the Colorado House.)

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