By Jerry Kopel
There's a new law on the books with front page headlines in the Denver Rocky Mountain News on May 27th: A marriage contracted in or out of Colorado has to be between a man and a woman or it won't be recognized here as valid. One major problem: The bill is unconstitutional.
The reason it's unconstitutional has nothing to do with equal protection, or giving full faith and credit to laws of other states, or other provisions you might think would apply. The reason is Section 17 of Article 5 of the state constitution: "....no bill shall be so altered or amended on its passage through either house as to change its original purpose."
Rep. Mark Paschall, R-Jefferson, and Sen. John Andrews, R-Englewood, introduced HB 1249 to amend the Colorado Marital Act so that parties to a marriage can "contract with respect to noneconomic issues."
These would be prenuptial and postnuptial agreements that could include certain "faults" the spouse has to prove (adultery, felony conviction, etc.) before getting a divorce. Paschall tried to pass the same issue in 1999, only then it was called "covenant marriage". The 1999 bill was killed.
HB 1249 went to the governor stripped of everything in the original bill with no mention of prenuptial or postnuptial noneconomic contracts. That's where the constitution steps in. Colorado's Supreme Court has a long history (1886 through 1988) dealing with Section 17 of Article 5. Here are rules that appear to apply.
1. With any changes in the bill, do you still accomplish the original purpose? Then the bill is valid. (The fact the language is different doesn't matter.)
In a 1971 case, the court held the purpose of a bill was to regulate operators of cars who "did" drugs or drank alcohol. The bill made it a misdemeanor to drive while ability was impaired. But the bill as adopted related to implied consent of drivers to alcohol testing by the police (a form of regulation). That was part of the original purpose and the bill passed muster.
In a 1988 case, the court held the purpose of a bill was to prohibit a business practice of waiving certain health fees. Two chiropractors used the phone directory and other media "to advertise willingness to waive insurance payments of deductible and copayment fees in providing health care services to patients." The bill prohibited misleading advertising, defining it as the practice of waiving the patient payments.
In the second house, everything was wiped out except the enacting clause. The practice of advertising a waiver of patient fees continued as a ground for professional discipline. The rest of the bill set up a class one petty offense crime for DOING what had just been an advertising PROMISE to do, waiving the patient deductible and copayment. Original purpose resolved with a different approach.
2. Bills introduced dealing with a certain subject can't be amended to deal solely with an entirely different subject.
In the early days of the state legislature, a bill was introduced having a single purpose: Creating a new county called Logan from territory within the county of Weld. That purpose was abandoned, and the bill was amended to establish the county of Montezuma 500 miles away, carved out of the county of La Plata. The court held the bill unconstitutional, a violation of Section 17 of Article 5.
That decision was quoted in the 1971 decision pointing out "the original purpose of the bill was entirely lost sight of or disregarded."
So what was the purpose of the original Paschall bill? It had NOTHING to do with whether or not a marriage in this or another state would be recognized as valid. The purpose was to allow married people to enter into contracts regarding noneconomic issues.
The law is unconstitutional. But that doesn't remove it from the law books. It's valid until the courts say it isn't. And someone has to have "standing to sue", the ability to show the new law affects a legally protected interest of the plaintiff, to bring it to the court's attention.
Who can challenge the new law? That's something opponents of the law have to determine, but I assume a group such as the American Civil Liberties Union will sooner or later find a way to bring an action.
* * *
HB 1249 wasn't the only bill this session to violate Section 17 of Article 5. There was also SB 178 by Sen. Ron Teck, R-Grand Junction and Rep. Nancy Spence, R-Aurora. The bill summary sets up the original purpose of the bill:
"Replaces the hearing by a hearing officer that is allowed to a teacher who has been recommended for dismissal, with a review by a review panel. Specifies the membership of the review panel. Deletes the provision requiring a prehearing conference."
The original bill dealt with CRS 22-63-302. The revised bill required a court report about a school employee (including a teacher) to the department of education after conviction, a plea of no contest, or a deferred sentence for the crime of incest against a child younger than ten years old. Other conforming amendments were added to the new purpose of the bill.
There's nothing wrong with a legislative desire to do something about victims younger than 10 years of age. They just chose the wrong vehicle. There was no connection between the original purpose of SB 178 and the final language.
The revised bill passed the House 63 to 1. Back in the Senate, Sen. Teck successfully moved the "Senate not concur in the House amendments" and that the bill "lay on the table", a way to kill the bill without a recorded vote.
For whatever reasons, Sen. Teck's motion resolved what would otherwise have been an embarrassing court conclusion in later years.
Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.
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