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

April 26, 2013

TO:	Phyllis Alleman and Tom Johnson

FROM:	Legislative Council Staff and Office of Legislative Legal Services

SUBJECT:	Proposed initiative measure 2013-2014 #40 concerning the distribution of lottery proceeds

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.

An earlier version of this proposed initiative, proposed initiative 2011-2012 #57, was the subject of a memorandum dated February 13, 2012. Proposed initiative 2011-2012 #57 was discussed at a public meeting on February 15, 2012. The comments and questions raised in this memorandum will not include comments and questions that were addressed at the earlier meeting, except as necessary to fully understand the issues raised by the revised proposed initiative.

Purposes

The major purposes of the proposed amendment to the Colorado constitution and the Colorado Revised Statutes appear to be:

1.	To change the distribution of lottery proceeds;

2.	To provide fifty percent of lottery proceeds to Colorado school districts to fund teacher salaries, smaller classroom sizes, extracurricular activities, and infrastructure;

3.	To decrease from forty to twenty-five percent the amount of lottery proceeds distributed to the conservation trust for parks, recreation, and open space purposes; and

4.	To decrease from fifty to fifteen percent the amount of lottery proceeds distributed to the great outdoors Colorado conservation trust fund.

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.

Enacting Clause

1.	Article V, section 1 (8) of the Colorado constitution requires that the following enacting clause be the style for all laws adopted by the initiative: "Be it Enacted by the People of the State of Colorado." To comply with this constitutional requirement, this phrase should be added to the beginning of the proposed initiative.

Format/Organization of Initiative

2.	An initiative is organized in sections, similar to chapters in a book. The sections are numbered sequentially: SECTION 1., SECTION 2., etc. The section number should appear in front of the amending clause. On page 2 of the proposed initiative, the amending clause is numbered "SECTION 1." This is the second section of the proposed initiative, so it should be numbered "SECTION 2."

3.	Immediately following the second amending clause is a provision labeled "SECTION 3." Since section 3 is actually the section of the Colorado constitution being amended and not a "chapter" in the proposed initiative, the word "section" should not appear in uppercase letters. It should be shown as it appears in the Colorado constitution: Section 3.

4.	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. Similarly, instead of indenting entire paragraphs (a), (b), (c), (d), and (e) in subsection (1) of section 33-60-104, as well as the subparagraphs in paragraph (b) and paragraph (b) of subsection (1) in section 3 of article XXVII, as well as the subparagraphs and sub-subparagraphs in paragraph (b), the proponents should simply insert a left tab at the beginning of the first line of each paragraph.

5.	Constitutional and statutory provisions are usually divided into component parts using the following structure: Subsections with numbers [(1), (2), (3) . . .], followed by paragraphs with lowercase letters [(a), (b), (c) . . .], followed by subparagraphs with Roman numerals [(I), (II), (III) . . .], ending with sub-subparagraphs with capital letters [(A), (B), (C) . . .] There are no subdivisions smaller than a sub-subparagraph. In section 33-60-104, the subdivisions that follow paragraph (b) should be roman numerals.

6.	It is standard drafting practice that there should not be an "(A)" unless there is a "(B)." In Section 3 (1) (b) (I) of article XXVII, there is an "(A)" but there is no "(B)." Additionally, the paragraphs that follow "(A)" have been broken down into subdivisions smaller than what is used in the Colorado constitution. The two introductory portions in subparagraph (I) and sub-subparagraph (A) should be combined into one longer introductory portion numbered (I), then the following subdivisions should be changed to sub-subparagraphs and be lettered (A) through (G).

Stricken Type, Small Capital Letters, and Capitalization

7.	When amending a section of the Colorado constitution and the Colorado Revised Statutes, strike type is used to delete language and small caps are used to show new language. Current law cannot be deleted without showing it as such in strike type. Also, the current language should be in lower-case letters, while the language being added should be the only language shown in small caps. Stricken text should precede new text where such changes appear together. For example:

a.	Current language is missing from the introductory portion to section 33-60-104 (1) and what are currently labeled as paragraphs (c) and (d) of subsection (1). Current language is also missing from section 3 of article XXVII in the introductory portion to subsection (1), the introductory portion to paragraph (b) of subsection (1), and subparagraph (III) of paragraph (b) of subsection (1), which is also missing its number. The current law should be inserted into the paragraphs in stricken type and new language should be shown in small capital letters.

b.	When renumbering or relettering provisions in current law, the old number or letter should be shown in stricken type.

In section 33-60-104, the original paragraphs (a), (b), and (c) have been relettered as (c), (d), and (e). The original letters should be shown in stricken type in front of the new letters.

In Section 3 of article XXVII, the original subparagraphs (I), (II), and (III) have been renumbered as (II), (III), and an unnumbered subparagraph. The original numbers should be shown in stricken type in front of the new numbers.

8.	Note that although the added text of the proposed initiative should be in small capital letters, a large capital letter should be used to indicate capitalization where appropriate. The following should be large capitalized:

a.	The first letter of the first word of each sentence;

b.	The first letter of the first word of each entry of an enumeration paragraphed after a colon; for example:

In section 33-60-104 (1) (b), the word "The," which follows "(b)," should have the first letter capitalized. Similarly, the first words following what is currently lettered as "e." and "g." should have the first letter capitalized. In section 3 of article XXVII, the provisions currently labeled "(4)" and "(7)" should have the first word capitalized.

c.	The first letter of proper names. Words that are not proper names should not have the first letter capitalized, for example:

In section 33-60-104, the words "state treasurer," "various school districts," "state," and "district" should not have the first letter capitalized.

In section 3 of article XXVII, "state's fiscal year," "article," "constitution," "lottery commission," "lottery programs," "net proceeds," "treasurer," "district," "high school activities association," "conservation trust fund," "division of parks and outdoor recreation," "state board," "trust fund," "consumer price index-Denver," "general fund," and "state" should not have the first letter capitalized.

Amending Clauses

9.	A proposal to amend the state constitution should specify the article and section to be modified or added. When amending provisions smaller than a constitutional section, state the constitutional section and article numbers before the "amend," "add," or "repeal" instruction. The amending clause for the constitutional provision should read:

SECTION 2. In the constitution of the state of Colorado, section 3 of article XXVII, amend (1) (b) as follows:

Miscellaneous

10.	Numbers should be spelled out. In section 33-60-104 the numbers "$40,000" and "$25" should be spelled out. In section 3 of article XXVII "$40,000.00," "25," and "$25" should be spelled out.

11.	In section 33-60-104 (1) (b), the second line reads: "schools within its the jurisdiction . . ." The word "the" is grammatically unnecessary and should be removed.

12.	In the introductory portion to Section 3 of article XXVII (1), on the fourth line a comma was unnecessarily inserted between the word "Article" and "XVIII." It should be removed.

13.	In section 3 of article XXVII (1) (b) (I) (A), the "K" in "k-12" should be a capital letter, not just shown in a small caps code.

14.	In section 3 of article XXVII (1) (b) (I) (A) (6), the paragraph should end with a semicolon rather than a colon.

15.	In section 3 of article XXVII (1) (b) (III), the semicolon at the end of the paragraph, before the word "and," was erroneously changed to a comma and should be changed back to a semicolon.

Substantive Comments and Questions

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

1.	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?

2.	The cover letter to the initiative indicates your intent that lottery proceeds be "divided into ½ to Colorado Education, ¼ to Parks and Recreation and ¼ to trust to the State Board of Trust Fund. Allocated to the General Fund of the State of Colorado."

a.	The actual language of the initiative, however, allocates lottery proceeds differently: 50% to education; 25% to the conservation trust fund for distribution to eligible entities for parks, recreation, and open space purposes; 10% to the division of parks and wildlife for new and existing state parks, recreation areas, and recreational trails; and all remaining net lottery proceeds, which would be 15%, in trust to the trust fund board. Apparently, no change is made to the existing language regarding the $35 million "spillover" (as adjusted by the consumer price index) into the general fund (some of the existing language is missing from your amendment to the constitution, while the statutory proposal has the existing language unchanged).

b.	Is your intent accurately reflected in the initiative or in your cover letter? If the latter, how would you change the proposed initiative to reflect your intent? What exactly is your intent, if any, regarding the general fund?

3.	The initiative requires lottery proceeds dedicated for education to be distributed "on a per capita basis according to student enrollment in each district." Districts that have more money due to higher property values or higher mill levies would receive just as much extra money, per capita, as poorer districts. Is that your intent?

4.	The constitutional section of the initiative specifies that teacher salaries "shall be at a minimum, $40,000.00 per year," that classroom size is "set . . . at 25 students," and that fees for extracurricular activities "shall be a maximum of $25 per activity per student per year."

a.	Given that the initiative proposes to amend the constitution and will, if adopted, presumably be effective for many years, will the minimum $40,000 annual teacher salary be adequate for your purposes many years from now? Would including an inflation or cost adjustment (such as applies to the general fund spillover) more accurately implement your intent?

b.	Similarly, the $25 cap for extracurricular activities may be appropriate for 2013, but would it be unreasonably low (or high) several or many years from now?

c.	Do you intend for there to be exactly 25 students in each classroom, or a maximum of 25 students? The statutory section of the proposal expresses this as "a maximum" of 25 students.

5.	Standard drafting practice is to use the word "fund" to refer to an account into which "moneys" or "revenues" are placed. Therefore, the word "fund" or "funds" is not typically used to refer to the moneys or revenues themselves. Would the proponents consider changing the term "funds" to "revenues"?

6.	Paragraphs (1) (b) e. and (1) (b) f. of the statutory amendment refer to "activity", but do not explicitly refer to "extracurricular activity" as referred to in paragraph (1) (b) c. and partially defined in paragraph (1) (b) d. Analogous references are found in the constitutional amendment. Do you intend the references to "activity" to mean"extracurricular activity"? If so, would you consider using consistent terminology?