STATE OF COLORADO

Colorado General Assembly

Mike Mauer, Director	Dan L. Cartin, Director

Legislative Council Staff	Office of Legislative Legal Services

Colorado Legislative Council	Office Of Legislative Legal Services

029 State Capitol Building	091 State Capitol Building

Denver, Colorado 80203-1784	Denver, Colorado 80203-1782

Telephone (303) 866-3521	Telephone (303) 866-2045

Facsimile (303) 866-3855	Facsimile (303) 866-4157

TDD (303) 866-3472	E-Mail: olls.ga@state.co.us

E-Mail: lcs.ga@state.co.us

MEMORANDUM

December 21, 2010

TO:	Phillip Doe and Richard Hamilton

FROM:	Legislative Council Staff and Office of Legislative Legal Services

SUBJECT:	Proposed initiative measure 2011-2012 #12, concerning a public vote to transfer state resources

Section 1-40-105 (1), Colorado Revised Statutes, requires the directors of the Colorado Legislative Council and the Office of Legislative Legal Services to "review and comment" on initiative petitions for proposed laws and amendments to the Colorado constitution. We hereby submit our comments to you regarding the appended proposed initiative.

The purpose of this statutory requirement of the Legislative Council and the Office of Legislative Legal Services is to provide comments intended to aid proponents in determining the language of their proposal and to avail the public of knowledge of the contents of the proposal. Our first objective is to be sure we understand your intent and your objective in proposing the amendment. We hope that the statements and questions contained in this memorandum will provide a basis for discussion and understanding of the proposal.

Purposes

The major purposes of the proposed amendment appear to be to amend section 35 of article V of the Colorado constitution (section 35) to:

1.	Require a public vote before the general assembly, an agency of the state, or any political subdivision or statutorily authorized authority of the state alienates or transfers from the public domain an interest in state park lands or their mineral resources, or an interest in state wildlife areas or their mineral resources, to any proprietary special commission, private corporation, person, or association;

2.	Require a public vote before the general assembly delegates to any state governmental entity or quasi-government authority in the state the ability to entrust to any special commission, private corporation, person, or association the power to lease or transfer property interests in state park lands or their mineral resources or an interest in state wildlife areas or their mineral resources; and

3.	Require a public vote before the general assembly performs any municipal function associated with any state park lands or their mineral resources or an interest in state wildlife areas or their mineral resources.

Technical Comments:

The following comments address technical issues raised by the form of the proposed initiative. These comments will be read aloud at the public meeting only if the proponents so request. You will have the opportunity to ask questions about these comments at the review and comment meeting. Please consider revising the proposed initiative as suggested below.

1.	It is standard drafting practice to insert a left tab at the beginning of the first line of each new section, subsection, paragraph, or subparagraph, including amending clauses and section headings.

2.	It is standard drafting practice to use small capital letters, rather than ALL CAPS, to show the language being added to the Colorado constitution. For example, the first sentence in subsection (2) of the proposed initiative would begin "The general assembly, nor any agency. . ."

3.	The preferred method for separating a series in a list is to use a comma after the second to last item in the series.

4.	The conjunction "nor", as used in subsection (2) of the proposed initiative, is generally preceded by the correlative "neither". For example: "Neither the general assembly, nor any agency of the state of Colorado . . ."

Substantive Comments and Questions

The substance of the proposed initiative raises the following comments and questions:

1.	Are there additional main purposes of your proposed amendment that we have not stated?

2.	Section 1 (5.5) of article V of the Colorado constitution requires all proposed initiatives to have a single subject. What is the single subject of the proposed initiative?

3.	What will be the effective date of the proposed initiative?

4.	As a change to the Colorado constitution, the proposed initiative may only be amended by a subsequent amendment to the constitution. Is this your intention?

5.	Have you considered any fiscal or other impacts that may result from the enactment of the proposed initiative on the state or local governments in this state? Insofar as enactment of the proposed initiative were to lead to a strain on governmental resources, have you considered incorporating a tax, fee, or some other mechanism that would allow some of the costs of the proposed initiative to be recovered?

6.	Where state park lands or wildlife areas have mineral rights, such as at St. Vrain state park, and there is interest in extraction, division of parks and outdoor recreation staff recommended at a recent meeting that the board of parks and outdoor recreation consider the potential for new revenues through mineral leases. Do you intend this measure to prohibit the board from approving leases of any such mineral right?

7.	Some state park lands or wildlife areas may not include the mineral rights. Do the proponents intend that this measure prohibit or limit the ability of severed mineral rights owners to develop their minerals that underlie such surface lands?

8.	Some lands with severed mineral rights may still provide recreational or wildlife-related benefits. Do the proponents intend this measure to limit the ability of Colorado state parks or the division of wildlife to acquire lands without mineral rights?

9.	You strike the word "money" from section 35. What is your intent by striking that word? Have you considered any unintended consequences related to the striking of that particular word?

10.	You add the words "or state" to section 35. What is your intent with the addition of those words? Does it matter that you did not add the words later in the sentence where there's a reference to "any municipal function"?

11.	The Colorado supreme court has stated that the purpose of section 35 is to prevent intrusion upon a municipality's domain of local self-government. The proposed initiative appears to broaden the scope of section 35 by prohibiting the general assembly, any agency of the state of Colorado, a political subdivision, a statutorily-authorized authority of the state of Colorado, a state governmental entity, or a quasi-government authority to act related to state park lands or state wildlife areas without prior voter approval. How is that purpose related to this particular constitutional section?

12.	What do you mean by "agency of the state of Colorado" as used in subsection (2) of the proposed initiative?

13.	What do you mean by "political subdivision" as used in subsection (2) of the proposed initiative? Does it include municipalities? If so, how does your voter approval requirement, a limitation on municipal action, square with the original purpose of section 35? Consider placing your new language in a different or new constitutional section.

14.	What do you mean by "statutorily-authorized authority of the state of Colorado" as used in subsection (2) of the proposed initiative?

15.	You mention "state parks lands". Do you mean "state park" as defined in section 33-10-102 (23), Colorado Revised Statutes?

16.	You mention "state wildlife area". Do you mean that term as defined in section 33-1-102 (42), Colorado Revised Statutes?

17.	You do not include "state recreation area" as defined in section 33-10-102 (24), Colorado Revised Statutes. Is that omission intended?

18.	You do not include "natural area" as defined in section 33-33-103 (8), Colorado Revised Statutes. Is that omission intended?

19.	You do not include lands managed by the state board of land commissioners pursuant to section 9 of article IX of the Colorado constitution. Is that omission intended?

20.	What do you mean by "mineral resources"?

21.	What do you mean by a "proprietary special commission" as used in subsection (2) of the proposed initiative? A special commission has been defined by the state courts in case law. By adding the word "proprietary", are you intending to change the common law definition of "special commission"? In subsection (3) of the proposed initiative, you list only a "special commission" rather than a "proprietary special commission". Do you intend a difference between the two?

22.	In subsection (2) of the proposed initiative, what do you mean by "alienate or transfer . . . any rights of property"? How is this different from the "lease to or transfer" language in subsection (3) of the proposed initiative? Why do you use different terms?

23.	What do you mean by "vote of the public"? Would "voter approval" be more accurate, as not all of the public is authorized to vote? While "vote of the public" seems self-evident, do you intend for these issues to appear on a ballot? If so, in what election? Is it fair to assume that you would like voter approval prior to the general assembly acting? How do you envision the timing of the voter-approval requirement to operate?

24.	Who would be allowed to vote in the election? Registered voters in the state? Individuals or entities that own property in the state? Would the elections be statewide, or could they be limited to areas surrounding the property in question?

25.	Have you considered the reality that a voter-approval requirement might hamper the ability of the state to acquire more land for recreational purposes because the property might be sold prior to voter approval? Have you considered the cost of placing a question on the ballot in order to obtain voter approval?

26.	What is a "state governmental entity" as used in subsection (3) of the proposed initiative? Is there a reason this phrase is not used in subsection (2) of the proposed initiative?

27.	What is a "quasi-government authority" as used in subsection (3) of the proposed initiative? Is it different from a "statutorily-authorized authority" as used in subsection (2) of the proposed initiative?

28.	What does "the ability to entrust . . . any power to lease or to transfer property interests" mean?

29.	How does the following part of subsection (3) of the proposed initiative fit in with the rest of subsection (3): "or to perform any municipal function associated with any state parks lands or the minerals [sic] resources associated thereto; or any state wildlife areas or the mineral resources associated thereto; any interests thereto whatever without a vote of the public"? Is it your intention to make this another limitation on the power of the general assembly? Are you saying that the general assembly shall not perform any municipal functions associated with any state park lands, state wildlife areas, and associated mineral resources without prior voter approval? What is a "municipal function"? What does "any interests thereto whatever without a vote of the public" refer to? Is that part of subsection (3) supposed to tie the subsection together and require all of those actions to be subject to voter approval?

30.	What is the intended effect of the proposed initiative on existing statutory law that allows the board of parks and outdoor recreation to "lease, exchange, or sell any property, water rights, land, or interests in land or water rights" as specified in section 33-10-107 (1) (b), Colorado Revised Statutes?

31.	What is the intended effect of this initiative on existing statutory law that allows the wildlife commission to "lease, exchange, or sell any property, water, land, or interest in land or water" as specified in section 33-1-105 (1) (b), Colorado Revised Statutes?

32.	Does the proposed initiative have any effect on the great outdoors Colorado program specified in article XXVII of the Colorado constitution?

33.	Perhaps a provision requiring the general assembly to make any conforming amendments to the statutory provisions related to the management of the state park lands and state wildlife areas would be useful.