The Colorado Special Session After Four Days

Colorado Governor Owen put nine things on the agenda of the special session. These are the only matters the General Assembly is supposed to consider in the session, although, naturally, they have some leeway in how they do so and are not required to pass the legislation suggested by the Governor. Democrats that control the General Assembly have produced legislation to address each of them, except for two items (voter ID and a referrendum duplicating a state services statute) which are either duplicative or counterproductive.

Several laws have been passed and two measures, a Republican favored tax increase that disallows a deduction for wages for known illegal immigrants, which must face the voters under TABOR, and a proposal to require the Colorado attorney general to sue the Bush Administration for failing to enforce immigration laws, have been added to this year's already lengthy ballot.

The Governor's call included the following agenda items, and next to each, I identify the relevant bills in the special session addressing them. Bills not mentioned are already dead in the special session.

A. A statutory measure "prohibiting state and local governments from expending state funds on services to illegal immigrants, except emergency services including prenatal care and K-12 education, as required by federal law."

Response: The primary response to this request has been a bill called H.B. 1023 by House Speaker Andrew Romanoff (D) and Senate President Joan Fitz-Gerald (D), which prohibits that provision of state services to illegal aliens aged eighteen or over, except for emergency services and federally mandated services, if separate legislation or rules limit the service based on citizenship, subject to certain excpetions, including in-kind disaster assitance, communicable disease prevention, services such as crisis counseling, soup kitchens and short-term homeless shelters, non-means tested, in-kind community services not necessary for life or safety, and prenatal care. It provides for verification of citizenship status by affidavit under penalty of perjury until a working verification system is in place. With Senate amendments it includes a photo ID requirement for public benefits.

H.B. 1023 cleared the House and was amended in the Senate on Sunday, where it will likely receive a Senate floor vote today. Colorado already had legislation, prior to the special session, that prohibits illegal immigrants from receiving: "Any retirement, welfare, health, disability, public or assisted housing, post-secondary education, food assistance, unemployment benefit or any other similar payment."

Several other bills support this bill by clarify state services which are banned for illegal immigrants in Colorado have been passed already in the session. A bill called H.B. 1001 by Morgan Caroll (D) and Bob Hagedorn (D) requires proof that an employer does not employ illegal immigrants to obtain state economic development assistance.

A bill called H.B. 1002 by Mark Cloer (R), Alice Madden (D), Moe Keller (D) and Steve Johnson (R), provides an express exemption for communicable disease programs from the ban on state services to illegal immigrants currently on the books.

A bill called H.B. 1009 by Bill Crane (R), David Schultheis (R), Ted Harvey (R) and Steve Johnson (R) requires prohibits illegal aliens from holding professional and business licenses. It is in conference committee today over a provision that would address concerns raised by members of the press that one version of the bill inadvertantly limits access to previously public records. UPDATE: A conference committee version has been agreed to by both houses of the General Assembly.

Democrats have take the position that ballot proposal backed by Governor Owens, which have been defeated, which would have used the blunt ballot proposal language of Initiative 55 that was struck down by the Colorado Supreme Court under the voter adopted single subject requirement for initiatives, would have delayed implementation until after the election, would have led to massive delays in litigation stopping provisions of the bill that were in violation of the constituion, would have authorized frivilous litigation against governments, could have required Colorado to lose many federal government grants, and would have required cuts in services that would have been irrational (like those for communicable disease prevention) or would have cost more to police than they would save in revenue (like regulating access to public parks, roads, sidewalks and clean air).

B. A statutory measure "implementing significant fines for employers in the State of Colorado that submit false or fraudulent documentation to the state pertaining to the identification of its employees without taking reasonable measures to confirm such information as legally valid."

Response: A bill called H.B. 1017 by Judy Solano (D), Angie Paccione (D), and Bob Bacon (D). The fine for submitted false or fraudulent identification is $5,000 for a first offense and $25,000 for a second offense.

This bill is going to conference committee today over the issue of whether it should cover only employers who know that the identification if false as the House version provides, or also covers employers who "should have known" that the identification was false, as the Senate version provides.

A bill called House Bill 1018 by Al White (R), Mike May (R) and Ron Teck (R), requiring a photo ID from the military, a Native American tribe, a state driver's license, or state ID to be hired, has passed the State House, but is unlikely to become law.

C. A statutory measure "exempting an wages earned by undocumented employees as a deductible expense for state income tax purposes."

Response: A bill called House Bill 1020 by Debbie Benefield (D), Bill Berens (R), Ted Harvey (R), James Kerr (R), Josh Penry (R) , David Schultheis (R) and Sue Windels (D) that puts a referred measure on the ballot to end the tax deduction for wages knowingly paid by employers to illegal aliens. TABOR requires that it be in the form of a ballot measure because it is a tax increase.

D. A statutory measure "requiring a six percent withholding tax on compensation paid to an employee whose compensation is reported on a Form 1099 where that employee has failed to provide a valid taxpayer identification number."

Response: A bill called House Bill 1015 by Andy Kerr (D), James Kerr (R), Anne McGihon (D) and Moe Keller (D). This bill, which deals with technicalities of the tax collection system, is going to a conference committee today over differences in technical details of the House and Senate version of the bills, at which the state controller will testify. Three different fiscal notes regading the costs and revenues generated by the bill have also complicated the passage of the measure. The state has been very specific regarding the cost of implementing the bill, but has refused to provide any estimate regarding the revenue that will be raised by the bill.

E. A statutory measure "requiring a person to provide verificable identification to register to vote and to vote that is no less restrictive than current state requirements to isuse driver's license and state identification."

Response: Democrats rejected this proposal on the theory that it would do more harm by keeping legitimate voters away from the polls than it would good by preventing fraudulent voting, which is rare. Instead, they passed a bill called Senate Bill 7 by Ken Gordon (D) and Bernie Buescher (D) making a felony to vote in an election when you know that you aren't entitled to vote.

F. A statutory measure "to criminalize involuntary servitude, forbid forced labor or services by threatening the destruction of immigration docuents, and making the act of threatening an individual with reporting illegal status to officials for the purpose of extorting money a felony."

Response: A bill called Senate Bill 5 by Suzanne Williams (D) and Mary Hodge (D) makes coercion of involuntary servitude with immigration status threats a crime (duplicating federal law on the matter). A bill called Senate Bill 4 by Brandon Shaffer (D) and Buffi McFayden (D) makes it a felony to engage in extortion by virtue of threatening to report someone's immigration status.

A similar bill called House Bill 1005 by Alice Borodkin (D) and Brandon Shaffer (D) cleared the House, but is unlikely to become law because it substantially duplicates Senate Bills 4 and 5 which have already been passed.

G. Introducing a referendum "banning state and local services to illegal imigrants, except as mandated by federal law."

Response: This proposal duplicates proposal A, above, and to the Governor's consternation, because Republicans want a ballot measure to bring anti-immigrant voters to the polls more than results. Democrats propose to accomplished this by statute with H.B. 1023, rather than a constitutional amendment. The last gasp response has been to agree that a statute should be passed while pushing to have a ballot issue to make limitations part of the state constitution.

According to the Rocky Mountain News, House Majority Leader Alice Madden of Boulder derided the Republican effort to try to get a ballot issue out of a proposal that would already be a state law.

I think it's ridiculous. It's not necessary to vote on something we already put into law.

H. A measure "to ensure timely resolution from the Colorado Surpeme Corut concerning proposed ballot initiatives "replacing the term 'promptly" with an objective and numeric timeline, not to exceed 30 days."

Response: A bill called Senate Bill 2 by Jennifer Veiga (D) and Bob McCluskey (R). The House version of the bill, which differs from the Senate version out of separation of powers concerns, requires that such cases be given priority on the docket, rather than imposing a fixed deadline. This bill faces an uncertain future in the General Assembly today.

I. "Raising the age of consent in common law marriage, at a minimum, to conform with the statutory requirements contained in the Uniform Marriage Act."

Response: A bill called Senate Bill 6 sponsored by Betty Boyd (D), Gwyn Green (D) and Anne McGihon (D), which would permit common law marriages only for persons aged eighteen year age or older who are not prohibited (e.g. by virtue of already been married or by virtue of being too closely related) from obtaining a marriage license. Out of state common law marriages entered into under age eighteen are not recognized in Colorado.

This is somewhat more restrictive than the Uniform Marriage Act, which allows marriages with parental consent at age sixteen, and also is more restrictive in that it refused to honor teenaged common law marriages from other states, such as those in a recent high profile case where a fourteen year old went to neighboring Kansas to obtain a teenaged common law marriage should could not enter into in her own state.

Other Bills

In addition to these bills, both Houses have passed differing versions of a bill called House Bill 1014 by Bernie Beuscher (D) and Abel Tapia (D) which currently provides that the attorney general is strongly encouraged to sue the federal government for reimbursement of illegal immigration related costs and given a budget for doing so. This bill is in conference committee today over the issue of whether a suit should be strongly encouraged, or required.

A similar bill called H.B. 1022 by Jack Pommer (D) and Lois Tochtrop (D) calls for a referendum to ask voters to direct the attorney general to bring such a lawsuit has already passed both the House and the Senate.