Jerry Kopel

Amendment 38 vs. The State Legislature

Oct. 6, 2006


The elimination of the state legislature is, in my opinion, the goal of Amendment 38 by Dennis Polhill and Douglas Campbell.

The specific language dealing with the state legislature and bills is as follows, leaving out references to city councils and other local legislative bodies.

(1) In each district, no more than 12 legislative measures passed each year shall be excepted from possible referendum petitions. Excepted measures with detailed descriptions of emergencies justifying the exceptions, shall be passed by 3/4ths or more of all members of ... each house of the general assembly.

(Columnist note: Appropriation bills are not subject to the 12 measure limit. Nine members of the Senate could keep a bill with a safety clause from passing even if the other 91 legislators approved the measure.)

(2) State measures not excepted shall take effect 91 days or more after the general assembly session passing them finally adjourns... Initial filing of referendum petitions with sufficient GROSS entries before that 91st day shall delay the effective date until the election or final petition invalidation.

(3) Measures rejected by voters shall then be void and measures wholly or mostly similar shall then be passed again with voter approval only.

(4) Unless stated in the texts or unless the texts be unlawful, future voter-approved initiatives shall be in effect until changed by voters.

How many bills can be passed with a "safety clause" by the legislature? Amendment 38 states "twelve" for the ENTIRE YEAR. That year includes the 120 day regular session, and any special sessions.

In my opinion, the "twelve" applies to bills that passed the legislature but are vetoed by the governor, so it doesn't mean twelve new laws. After all, the veto can come AFTER the legislature adjourns.

The number of bills passed  by the legislature in 2005 and not vetoed by the governor was 355. In 2006 it was 396. The annual numbers include 20 to 30 appropriation and supplemental appropriation bills. One out of every four non-appropriation bills PRESENTLY passed do not have safety clauses.

Under Amendment 38, approximately 518 measures that would otherwise become law with safety clauses those two years, would have to depend on potential approval following opposition petitions. 

If the twelve emergency bills are passed during the regular session, imagine a special session called to consider a response to a specific disaster not covered by existing law. It could be a Supreme Court decision which holds mandatory sentences for violent criminals including murderers is unconstitutional. Or it could be a physical disaster.

Under Amendment 38, a bill passed in the special session and signed by the governor cannot take effect until 91 days after the special session ends.

Someone wanting even a further delay can file referendum petitions with "gross entries". In other words, petitions containing the names Mickey Mouse and Donald Duck living on Mars qualify for sufficient names until the election or final petition invalidation.

When is the election held on a state legislative issue? The only date given in Amendment 38 is November. So let us hope any disaster occurs in July or August if opponents file sufficient valid opposition signatures. A December disaster could not be voted upon (if there are sufficient valid opposition signatures) until November of the following year.

Persons holding occupation licenses or registration or certification who fall under the state's Sunset Law number in the hundreds of thousands. The date for renewal of their occupation licenses falls on July 1. While a one-time lapse of passage continuing the protection is possible, a second lapse the succeeding year results in that occupation becoming open to anyone. Your barber could, as in historic times, practice brain surgery again.

Future voter-approved initiatives can only be amended by a subsequent vote on the ballot, unless the text states otherwise.

If an initiative passed by the voters contains some horrible error (and unless a court determines it to be unlawful) it stays in effect until placed upon a new November election ballot, and is changed.

Under the original constitution of 1876, the legislature met for forty days. Bills did not become law until 90 days after passage unless approved by 2/3rds of the House and Senate, EXCEPT bills with "emergency clauses as expressed in the act". Thus  safety clauses could take effect at any time. Our ancestors were not limited to 12 emergency clauses.


Yes, we have an initiative process adopted into our constitution nearly a 100 years ago. But it was never intended to replace our legislature. It was never intended, as I believe Polhill and Campbell would desire, to be a legislative body composed of several million voters.


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

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