Legislative and Judicial Oversight of Rulemaking
| Publication year | 1989 |
| Pages | 245 |
1989, February, Pg. 245. Legislative and Judicial Oversight of Rulemaking
The administrative agency's role as law-maker, law-enforcer and law-interpreter has grown over the past thirty years in Colorado.(fn1) This has given rise to an interlocking set of oversight checks and balances by the legislative, executive and judicial branches of state government over the rulemaking, enforcement and adjudicatory functions of agencies. The result in this state is a fair and remarkably open process of grassroots government which reflects basic reluctance to leave regulation to full-time regulators. It also shows a practical realization of the need for regulation in light of extensive federal statutes and rules which call for counterpart state programs.
This article examines the ever-evolving Colorado system of legislative and judicial oversight in regard to state agency rulemaking.(fn2) Although not reviewed in this article, the internal functioning of checks and balances within the executive branch is of vital importance and cannot be overlooked in practice.(fn3) Executive agencies function best when oversight against illegal or ill-considered rulemaking is built into the process of adopting the rule.
The General Assembly has been active in establishing oversight mechanisms with regard to agency rulemaking. In addition to defining the grant of authority to an agency and setting guidelines for its exercise, the General Assembly has the primary function of determining the procedures to be used in proposing, adopting, publishing and reviewing rules.
The state's administrative code (adopted in 1959) was generally modeled on the federal Administrative Procedure Act and contained elementary principles for rulemaking.(fn4) Each agency with rulemaking authority was required to announce publicly its contemplated rulemaking, give notice of the substance of proposed rules and hold a public hearing before adopting the rule. Each agency kept its own mailing list for notification purposes and a register of its currently effective rules. The process was rather simple from an agency standpoint.
In the late 1960s, the programs of the "Great Society" and the "Environmental Decade" became more complex and required states to take reciprocal actions. The General Assembly began engrafting oversight provisions, starting in 1967 with a requirement that no new or amended rule could be issued without a state Attorney General's opinion as to its constitutionality and legality.(fn5)
In the mid-1970s, the legislature began to assign itself direct responsibility for review of rulemaking. Prior to that time, the courts had been solely responsible for rulemaking review under the terms of the Administrative Procedure Act.(fn6) In 1977, the General Assembly specified that all rules must be submitted to the Legislative Drafting Office for subsequent review by the Committee on Legal Services ("Committee"), a committee of the General Assembly.(fn7) By means of an Act, the General Assembly can then determine whether new or amended rules are "within the power delegated to the agency and as authorized by law."
Any rule not submitted to the Legislative Drafting Office with the Attorney General's opinion on the rule is void. An agency may not readopt a rule which, in the opinion of the General Assembly through an Act, is not authorized "by the state constitution or statute," unless the authority to promulgate the rule is granted to the agency by (1) an amendment to a statute; (2) the Colorado constitution; or (3) a judicial determination of the existence of statutory or constitutional authority.(fn8)
A bill to rescind a rule is subject to a Governor's veto in favor of the agency, thereby defeating legislative intent. For this reason, the General Assembly provided in 1979 that all then-existing rules would expire on specified dates and that all new or amended rules shall expire on June 1 of the year following their adoption, unless the General Assembly passes a bill that postpones a specific rule's expiration date.(fn9)
Legislative review of new and amended rules has become routine. Each year the Committee prepares a bill to extend agency rules or rule amendments which were adopted during the prior year. However, a few are selected for expiration by the same bill. This legislation normally moves through the General Assembly by consensus. Often, the staff of the Committee will negotiate a rule change with the agency, eliminating the need to disapprove the rule by an Act. Confusing wording, ambiguous definition of terms, contradictory provisions and duplicative requirements can be weeded out in this fashion. An agency sometimes simply agrees to withdraw the rule. As a result, it is rare that rules are actually rescinded, modified or allowed to expire by the General Assembly. For example, in 1988, only thirteen rules out of 400 rules or rule amendments reviewed were allowed to expire without extension.(fn10)
Often, when the Committee spots a gap in the statutory authority of an agency and a particular rule is considered to embody an acceptable course of action by that agency, legislation is introduced to grant the...
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