Jerry Kopel

"I was once a 98-pound weakling. One day, while lying on the beach, a heavyweight bully kicked sand in my face. What did I do? I left the beach." That's all fiction as to me, but it's the truth as to the 98-pound-weakling (the state Supreme Court) and the heavyweight bully (the state legislature).

Article 3 of the state constitution is only four and a third lines. This briefest of all the constitution's articles begins: "The powers of the government of this state are divided into three distinct departments, -- the legislative, executive, and judicial ..." It does not use the words "equal" or "coequal" departments (as court decisions allege it means), only "distinct" departments.

Pragmatically, the legislature is the most powerful branch because it controls the money. Over the decades it has made inroads into the power of the courts, with the most recent example being HB 1301 in 1999, as this column will explain.

Article 6, section 21 of the state constitution as adopted in 1962 has the Supreme Court making and promulgating rules governing administration of courts and practice and procedure in civil and criminal cases. The potential conflict comes when you try to figure out whether what the legislature passes is procedural, as in efficient operation (power is with the courts) or substantive, as in "public policy" (power is with the legislature).

There is no "answer" as to who wins, although court decisions try to lean towards the legislature when the court has not already adopted a rule, or the rule already in effect is not in conflict with the statute.

One area where the legislature tries to infringe on the power of the courts is control over lawyers. Court cases give the Supreme Court the exclusive power to define and regulate the practice of law, the qualifications for admission to practice, and the right to discipline stating "there is no authority in these respects in legislative or executive departments."

When the legislature passes a law that infringes on the court's authority to regulate the practice of law, the court may well lean backwards to avoid a clash, as it did in a 1957 case. CRS 12-5-112 provides that practicing law without a license is deemed contempt.

But the Supreme Court already had that inherent authority to punish practicing law without a license as contempt. So the 1957 court decision that "appropriate and essential assistance in discharging (that authority) may be afforded by the enactment of statutes" is (in legalese) stating "duh, thanks for the help."

A 1978 Supreme Court decision written by then Justice Jim Carrigan is the most well-written decision on the court vs. the legislature that I have found. Carrigan, coming from a political background (active Democrat, University of Colorado regent) understood the dynamics of diplomacy.

In the decision (State vs. McKenna), he writes "Confrontations of constitutional authority are seldom in the long-term public interest and therefore are to be avoided where possible. Rather, mutual understanding, respect and restraint, the lubricants of good government, are to be sought. While our duty may occasionally require us to declare unconstitutional a statute adopted by the General Assembly, we hold that power in reserve to be exercised only when the statute at issue cannot be reconciled with the constitution."

In 1999, a dispute arose as to whether the Supreme Court should mandate lawyers to do "pro bono" (free) work on behalf of those who cannot afford legal fees. The court said "no", but at the same time the legislature passed HB 1301 which provided:

"No regulatory agency or ... branch.... of state government shall require any person practicing a regulated profession or occupation to donate such person's professional services without compensation to any other person as a condition of admission to or continued licensure in such profession or occupation; nor shall payment of money in lieu of such uncompensated service be required."

The new law, by Rep. Shawn Mitchell, R-Adams County, and Sen. David Owen, R-Greeley, is certainly within the assembly's powers as to all professions and occupations EXCEPT attorneys. And, as long as the Supreme Court decides it doesn't want mandatory pro bono for attorneys, the issue is moot and won't be contested.

But what if the court decides it WANTS mandatory pro bono for attorneys? Or what if the legislature decides (as it has for other regulated occupations) that attorneys don't need mandatory continuing legal education, which is presently mandated by court rules? Will the court be a 98 pound weakling, or will it grow some muscles and push the bully off the beach?

* * *

The Colorado Limited Gaming Control Commission has agreed to reduce taxes on casinos effective July 1st. The argument is that Colorado has surplus tax revenues and, according to a Denver Post article, "the higher rates meant that casinos were paying unnecessary taxes."

The Post story didn't mention where the money came from: Some from tourists, but mostly from Colorado taxpayers. A reduction in "surplus" means that much less for returns to taxpayers in future years, and more profits to out of state shareholders in the major casinos.

In case you may have forgotten, the constitutional language, Article 18, Section 9, Subsection (5) (a) reads: "Up to a maximum of forty percent of the adjusted gross proceeds of limited gaming shall be paid by each licensee, in addition to any applicable license fees, for the privilege of conducting limited gaming."

The constitutional amendment was written by the pro-casino forces and the potential heavy tax was used as an argument for its passage. No casino operator indicated to the general public they could not operate with that type of tax.

Robert Fiori, general manager of a Black Hawk casino, is quoted in the Post story as stating the casinos will use the extra money gained by tax reduction for marketing and to improve employee benefits. Marketing? More ads in the Post and Denver Rocky Mountain News to lure more compulsive gamblers?

Beginning July 1st, the tax on adjusted gross proceeds over $15 million will remain at 20 percent. From $1.00 to $15 million, at staggered percentages, the previous tax totaled $2,160,000. The new tax up to $15 million will be $1,435,000 which is a reduction between 33 to 34 percent of the previous tax. The reduction will be shared by both small and large casinos. Any casino with large revenues is going to welcome an additional $725,000 per year to add to profits and hike their stock prices.

In 1998, casinos had an opportunity to support a bill in the Colorado House that would have provided some gambling revenue funds to help reduce the number of problem gamblers. They chose not to do so.

Back in 1991, I was part of the six-member conference committee on the casino gambling bill. Fees for slot machines and the high rates of taxes on gambling profits were not just to raise money needed for oversight and administration. The fees and taxes were also to provide a brake on excessive expansion of gambling operations.

In case you might have forgotten, the original concept for casino gambling (if you check the ads) was to foster "Mom and Pop" operations in the backs of businesses that might otherwise have to close because of lack of tourist trade in the three gambling towns.

"Mom and Pop" are long gone, and so are the businesses the new law was supposed to help.

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

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