Reporters and editorial writers across Colorado blame state legislators for recent Colorado Supreme Court decisions that free some sex offenders from continuing on parole, or facing any parole at all, based on conflicting laws. Of course such blame is nonsense, at least to anyone who knows how the legislature works.
Of 100 legislators on hand in ANY given year, probably ten can draft a bill. A slightly smaller number have the personal knowledge or experience needed to swim through intricacies of conflicting statutes.
One who did was former Republican House member, John Mackie of Boulder, who served as majority leader in the 60's. He would spend countless hours at night in his office after the legislature adjourned, checking how bills affected other statutes. When he announced his retirement in 1968, the House adopted a bi-partisan resolution urging him not to leave. He did leave, while still quite young, and shortly after died of a heart attack.
What most legislators do is take a product handed them, deal with the pros and cons of political ramifications to reach compromises and accept the opinions of experts and lobbyists on legal aspects of final passage.
Some legislators stay around long enough to build up experience in certain areas of law. That gives them power to command attention and votes of other legislators. Only 14 of 100 legislators in 2001 even have a background as lawyers. And being a lawyer doesn't make one competent in every subject discussed.
One group that could properly be hoisted up as sharing at least part of the blame has been overlooked in every story and editorial I have read on the sex offender subject. That group is the District Attorney's Council. Each year, the legislature receives two major bills providing substantive and procedural changes in Colorado law, often based on overcoming state court decisions not to the District Attorney's Council liking.
In addition, every bill and every amendment dealing with crime and punishment is scrutinized by the Council and decisions are reached on whether to support or oppose bills or amendments. The first sex offender Supreme Court decision written in September, 2000, displayed Council's testimony regarding a 1996 bill as evidence to support the court's finding of conflict.
You may have noticed the silence of the district attorneys in the news accounts. Any remarks about legislative liability might come back to haunt them.
Another group is the Legal Services Office of the legislature. It drafts bills and amendments, reviews rules and regulations of the executive branch to find those that exceed rule-making authority, provides research for legislators and coordinates litigation involving the legislature.
Legal Services is not perfect. They have made mistakes in the past and will make mistakes in the future, but their record of accuracy is remarkable based on how many bills do pass that are not subject to potential future litigation. And they have to give the same care to each bill regardless of whether it eventually passes or fails.
During the first two years of my retirement I served as a non-paid Advisor to the House. I tried to train new legislators of both parties to look beyond the words in their bills, as John Mackie did, to see how the bills would affect other laws, and to pay attention to the Construction of Statutes, which begins in Volume 1, Section 2-4-201.
The court decisions in the sex offender cases hinged in large part on the Construction of Statutes law which deals with irreconcilable differences between conflicting statutes.
We live in a complicated world. In 1921, all laws governing the state were contained in one volume of 2,761 pages. Eighty years later there are 13 volumes of 19,226 pages. Are there conflicts? You bet!
Two important gains can come from these sad events: More attention paid by legislators to the Construction of Statutes and less obeisance paid to the District Attorney's Council.
Jerry Kopel served 22 years in the Colorado House of Representatives.
Copyright 2015 Jerry Kopel & David Kopel