Who do you believe, State Treasurer Mike Coffman or Governor Bill Owens?
They had very different feelings about HB 1001, the first bill introduced in 2005 and the next to last one to be passed. "One of my top priorities" wrote Coffman after the bill passed the legislature, " has been putting a stop to the practice of transferring hundreds of millions of dollars from the state's cash funds to balance the general fund budget.."
"HB 1001...would restrict the future use of cash funds for anything other than their intended purpose, " (such as the Petroleum Storage Tank Fund, the Unclaimed Property Trust Fund, and the Workers Compensation Trust Fund.)
Gov. Owens vetoed HB 1001 on May 27, citing Barber vs. Owens, a March 18 Denver District Court decision, as one basis for his veto. The second basis was "The General Assembly's ability to make these transfers to fund constitutionally and federally mandated programs prevented the need to request tax increases to fund the increase in these mandated programs."
As a third basis "HB 1001 incorrectly implied that it limits future (legislatures) from transferring cash funds for general purposes. Only the Colorado constitution can limit the appropriation power of the legislature."
The decision in Barber vs. Owens did not deal with HB 1001. The court did not have under consideration a law passed by the legislature that voluntarily reduced the legislative ability to transfer funds. The court only had to decide if the action the legislature took under then-present law passed by the legislature was constitutional.
"Crediting money to a special fund..." wrote the court "does not mean the General Assembly is prohibited from appropriating the money in the special fund for another purpose..."
"...the power of the General Assembly over appropriations is absolute...These (special) funds were created under the General Assembly's legislative power to enact...(and) the General Assembly has the constitutional power to amend or repeal provisions of the (special) funds."
The court then stated even if the transfers were unconstitutional, the court could do nothing about it, since the appropriation or allocation of money in a purely legislative function, is not subject to judicial control.
On the second basis of the veto, the question "was HB 1001 helpful or not as far as potential tax increases were concerned?" is not a valid basis for vetoing HB 1001. The bill was, at most, an irritation to the governor's philosophy. If the need to transfer cash funds ever arose again, let the legislature make that decision by amending the law.
On the third basis, the governor has to be kidding. Every bill passed by the legislature limits future legislatures in the sense that the present law is repealed or amended to produce a desired future result. Every regulatory agency law passed by the legislature contains a FUTURE date when the agency "sunsets". If a future legislature wants to keep the agency it must amend the directive from a past legislature.
HB 1001 by Rep. K. Jerry Frangas (D) and Sen. Paula Sandoval (D) was the very first bill introduced in the 2005 session, and it was the next to last bill (excluding memorials) to be re-approved by the House on the last day of the 2005 session.
The dates when actions were taken helps underscore the fact the court decision did not affect HB 1001. The bill passed the House on Feb. 1 by a 50-15 margin. Only two Republicans voted "no", Rep. Dale Hall and Rep. Bob McCluskey.
The court decision is Barber vs. Owens was released March 18. HB 1001 was then vastly amended in the Senate April 12 and on April 13 passed 20 to 14. Obviously the amendments were to make certain that the bill met any constitutional objections.
The bill then went to conference committee. The Senate acted first, accepting the committee recommendations and re-passed the bill 21 to 13. It passed the House 51 to 14, with seven Republican "no" votes.
If the measure is reintroduced early in 2006 and passed early, it has a chance to override a veto, at least based solely on the arguments provided in the May 27 letter by the governor.
(Jerry Kopel served 22 years in the Colorado House.)
Copyright 2012 Jerry Kopel & David Kopel