5/22/1998

Life is not fair, as more of the final outcomes from the 1998 legislative session prove.

On Jan. 9th, I reported on the Motor Vehicle Dealers bill, HB 1128, which ignored Dept. of Regulatory Agency (DORA) recommendations and went with language approved by the Automobile Dealers Assn. Here is what DORA wanted and didn't get:

One additional public member on the board. Eliminate the license for car salespeople. As an alternative, eliminate the salesperson bonding requirement. Stop tying a salesperson license to a specific dealership. Make sure injured consumers have greater access to dealer bonds. Require dealers to give customers informational brochures with complaint procedures.

Use experienced hearing officers to interpret regulatory standards. Repeal CRS 12-6-121.6 which puts the board in the middle of disputes between dealers over dishonored checks. Require dealers to deliver vehicle titles within 30 days of the sale and institute mandatory penalties for failure to comply. Discontinue licensing of manufacturers.

So what is in the bill? Denial of salesperson licenses to persons convicted of various crimes during the previous ten years. Use of board members as hearing officers (regardless of lack of experience in interpreting regulatory standards). Eliminate protections for consumers as to disclosures and information to be given consumers leasing cars. (Some proponents claim new federal regulations will protect consumers leasing cars.)

A MAJOR change in HB 1128 was something I had never seen before in any regulatory law. The legislature designates actions by persons or companies in its laws that constitute violations of those statutes. HB 1128 takes away the validity of what constitutes a violation. It gives the board and executive director the right to determine by RULE which of the various statutory prohibitions passed by the legislature that they will use or ignore.

THAT is a violation of the separation functions under the state constitution. The legislature cannot delegate to the executive branch (which is where the dealers board is located) the right to decide which laws to enforce and which laws to ignore.

CRS 12-6-121 states that willful violations of this law constitutes a crime. The legislature cannot delegate to the motor vehicle dealers board the ability to determine what is or is not a crime.

HB 1128 has to be one of the worst bills to pass the legislature in 1998. And it was signed into law by Gov. Romer.

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There was a still a chance during the last 10 days of the session for the genital mutilation bill that I reported about on April 17th to become law, It did not happen because of who was in the chair in the Senate on April 27th.

HB 1160 concerning "Substantive Changes for the Strengthening of the Criminal Laws" was on the second reading calendar in the Senate. Chairman of the committee of the whole was Sen. Ken Chlouber, R-Leadville. Sen. Dorothy Rupert, D-Boulder, offered an amendment to place SB 41, the genital mutilation bill that had already passed the Senate, passed House State Affairs Committee and died in House Appropriations, under HB 1160.

Sen. Chlouber, in a mystifying ruling, held the genital mutilation bill (which provided such mutilation was a crime) did not fit under the title to HB 1160. Sen. Pat Pascoe, D-Denver, then moved to appeal the decision of the chair. Unfortunately, there is NO APPEAL of the decision of the chair in the committee of the whole in either the House or the Senate.

I have often written that the chair of the committee of the whole has more power than the Senate President or House Speaker as to appeals. The President or Speaker's decision CAN be appealed, but usually with dire consequences.

Some more huffing and puffing occurred, and then Sen. Jim Congrove, R-Arvada, offered an amendment to HB 1160 to ban partial birth abortions. Sen. Chlouber, now between a rock and a hard place, had to rule the Congrove amendment also did not fit under the title.

Sen. Chlouber was 100 percent wrong in both instances, and it would have been normal for Senate Majority Leader Jeff Wells, R- Colo. Springs, at that point to move the committee to rise and report. Then another senator could have been assigned to chair the committee, with possible different rulings.