Jerry Kopel


An important part of "Independence" is the role that citizens play in determining what should or should not become law. Prior to 1910, Colorado voters lacked that right. That year, the voters passed a constitutional amendment providing for initiative and referendum including the power to "approve or reject at the polls any act or item, section or part of any act of the General Assembly."

According to Colorado's Yearbook (which is no longer published) during the elections of 1912, 1914, and 1916, thirteen laws were "first adopted by the legislature and then referred by petition for popular vote under the referendum provision." Ten were approved and three were rejected.

Of course, that right applied only to bills without a safety clause, which then read: "In the opinion of the General Assembly an emergency exists; therefore this Act shall take effect and be in force from and after its passage."

That was then. Now it is 1998. Mark Wednesday, August 5th in your datebook. That's the day 78 bills passed by the state legislature will become law despite the legislature's attempt to encourage voters to put ANY ONE of the bills on the Colorado ballot for final decision in November.

Each of the 78 bills is missing the present day safety clause: "The General Assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety."

And 77 of those bills contain a reference that the bill becomes law at 12:01 a.m. on the day following the expiration of the 90-day period after final adjournment of the general assembly. But if a referendum petition is filed against the bill, the bill becomes effective only if approved by the voters.

One bill, by Rep. Lew Entz, R-Hooper, is missing both a safety clause AND a referendum reference, and that is fine. The state constitution doesn't require the boiler plate referendum language to be in the bill. Not having the safety clause in the bill automatically triggers the right to petition as stated in the constitution.

The 78 bills mean that one out of every four bills passed by the legislature (not vetoed, or strictly appropriations, or already put on the November ballot to decide how to distribute the state surplus) is subject to a petition drive by the "opposition". That is the highest number of bills in that category since the early years of petition following the constitutional amendment of 1910.

Next year's total bills without safety clauses should be even higher, perhaps 35 to 40 percent, because legislators now realize the public isn't interested, no matter how controversial the bill is that was passed.

Thirty-five House members and 13 Senators introduced the 78 bills. Rep. Bill Swenson, R-Longmont had the most at five. He was followed by Sen. Stan Matsunaka, D-Larimer with four. Reps. Gloria Leyba, D-Denver, Phil Pankey, R-Littleton, Jack Taylor, R-Steamboat Springs, and Steve Tool, R-Larimer, plus Sen. Doug Linkhart, D-Denver, had three each.

Why have the voters ignored this "free offer"? Well, because it isn't free. Someone has to collect 54,241 valid signatures of registered voters by August 4th. That is five percent of the total number of votes cast for all candidates for the office of secretary of state in November, 1994. Someone either has to have a lot of money to pay petition circulators or an organization with lots of angry members.

If a bill was a problem for special business interests, it was either neutered in the 1998 legislature, or killed. What is being offered the voting public in the 78 bills is fairly tepid and unlikely to arouse too much anger. Here are several that might be slightly controversial:

HB 1183 by Rep. Ken. Gordon, D-Denver, and Sen. Dick Mutzebaugh, R-Highlands Ranch concerns "child custody". It changes that concept to "parental responsibilities". But it does more than that and some legislators in the Senate were concerned about "exactly" what it does. The measure stirred controversy, was re-referred during second reading March 23d, heard and passed out again to the Senate floor and adopted on third reading May 1st, 22 to 13.

What was unusual was that every female Republican senator voted against the bill, which had 13 total Republican "no" votes and only seven "yes" Republican votes including the Senate sponsor. But Sens. Ginette Dennis, Sally Hopper, Elsie Lacy, MaryAnne Tebedo, and Dottie Wham all voted "no".

While the bill is subject to referendum, it also does not take effect until Feb.l,1999, which allows the new legislature in 1999 to adopt amendments or move to repeal the measure. Once the new law takes effect, it can be used to modify previously entered court orders.

HB 1112 by Rep. Bill Swenson, R-Longmont, and Sen. Sally Hopper, R-Golden, concerned assistance grants to the elderly and disabled. I would have thought the nearly $7 million appropriation provided for the new fiscal year would have drawn a lot of negative votes, but the opposition was minor.

HB 1203 by Rep. Matt Smith, R-Grand Junction, and Sen Ed Perlmutter, D-Golden, looks like a pro-consumer bill "concerning deceptive trade practices relating to the sale of manufactured homes." But I'm not so sure.

It doesn't matter whether a manufactured home is real or personal property, since both are covered under the definition of "property" in CRS 6-1-102. And failure to deliver a manufactured home on time is presently a deceptive trade practice under CRS 6-1-105.."fails to make deliveries within a reasonable time or to make a refund therefor."

Until HB 1203 came along, a buyer would have been entitled to treble damages. Under HB 1203, the damaged buyer is entitled "damages in the amount sufficient to refund moneys actually paid for a manufactured home not delivered in accordance with (the language in this bill)". Both HB 1203 and present law allows recovery of reasonable attorney fees and court costs. HB 1203 allows interest, but so do other Colorado statutes that could be used.

However, under HB 1203, if the manufacturer "steals" the escrow deposits from buyer, the buyer is still only entitled to the "refund", not treble damages.

A future column will discuss the Colorado Consumer Protection Act originally enacted in 1969, and and how badly it has been turned into a garbage can that needs revision.

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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