DENVER–The bipartisan Legislative Legal Services Committee voted to pay more than $28,000 in lawyer’s fees for state Senate President Leroy Garcia’s appeal of a District Court ruling that he could not use incomprehensible speed-reading computers to meet the requirement that bills be read at length at least twice in each chamber of the legislature.
Last legislative session Garcia, a Democrat representing Pueblo, and Senate Secretary Cindi Markwell tried to bypass that requirement by having a 2,000-plus page bill read by multiple computers at incomprehensibly high speeds at the same time.
Senate Republicans were demanding full readings in order to slow down the legislative agenda of the Democrats and stall bills they had no hope of voting down.
Senate Minority Leader Chris Holbert, R-Colorado Springs and Senator John Cooke, R-Greeley, sued Markwell and Garcia after Holbert refused to consent to dispensing with the full reading of House Bill 19-1172.
The requirement bills be read in full unless there is “unanimous consent” not to is in the state Constitution.
When, after hours of reading the bill out loud by a Senate staffer, Markwell set up several laptops to read different sections of the bill simultaneously, Cooke and Holbert filed for an emergency injunction in Denver District Court, where Judge David Goldberg granted a preliminary injunction against Garcia and Markwell.
After a March 19, 2019 hearing Goldberg ruled that Markwell and Garcia were prohibited from “refusing to read legislation, including HB 1172 in an intelligible fashion absent the unanimous consent of all members present.” The injunction became permanent on May 8, 2019.
In late June an appeal of Goldberg’s injunction was filed by Markwell and Garcia’s attorney Mark Grueskin, who was appointed to represent Senate Democrats by the Committee.
The Committee met Thursday to discuss payments made to Grueskin.
According to Cooke, the Committee never voted to pay for Garcia’s appeal of the injunction, so the more than $18,000 of taxpayer money already paid and another $10,000 or so in pending bills was not authorized.
At the hearing Thursday morning Committee Chair Senator Pete Lee, D-Colorado Springs, moved to close the hearing for an executive session “for the purpose of conducting attorney/client discussions concerning specific claims or grievances.”
After objections by several members and a discussion of the need for openness and transparency the Committee voted not to go into executive session.
The Committee called Office of Legislative Legal Services (OLLS) Director Sharon Eubanks to testify.
Eubanks admitted that the failure to get specific approval from the Committee for the appeal was an error caused by a change in how the Committee authorized payments for court cases involving legislators.
“It used to be that the committee itself was the client,” said Eubanks.
But some time ago the Committee decided to use a different process that allowed legislators being sued to use outside counsel, making the individual legislator the client in the initial legal proceedings.
The Committee had previously selected the firm the OLLS would use in such cases and negotiated a contract providing for a $200 per hour maximum fee.
But Eubanks overlooked the matter of getting authorization to pay for an appeal once the initial case has been decided.
“We should have brought this to you sooner,” said Eubanks.
In the initial District Court case Cooke and Holbert had to pay for their own attorney in order to sue Markwell and Garcia. Markwell and Garcia are state employees, so the state is responsible for paying for their defense.
But an appeal is a new court action and this one brings up constitutional questions that affect both sides of the legislature.
Senator Owen Hill, R-Colorado Springs, argued during the hearing that now it is Markwell and Garcia who are initiating the legal action because of the District Court ruling against them, so either they should have to pay for their own attorney or the OLLS should be paying for legal representation for both sides.
“Fund both sides or neither side,” said Hill. “Both sides have legitimate claims as to how we shape this discussion.”
Senator Paul Lundeen, R-Colorado Springs said, “We are swimming in deep, deep legal water. We should be paying for both sides in this constitutional issue.”
The issue that Markwell and Garcia are arguing is the separation of powers doctrine that generally holds that the courts have no power to decide “political questions” best left to the representative political process.
Grueskin’s appeal motion says that the District Court erred “in creating standards for and directing implementation of legislative procedures” by “mandating legislative compliance with an unprecedented, impractical and subjective test for bill ‘reading’ that will lead to continued but uneven judicial involvement.”
In essence, Grueskin is saying that it’s not up to the courts to decide the legal definition of “reading” a bill “at length” because that’s the province of the legislature.
The implication is that Article V, Section 22 of the state Constitution which says “Every bill shall be read by title when introduced, and at length on two different days in each house…” can only be interpreted as to what “read” and “at length” means by the legislature itself, not the courts.
The Committee voted to approve the continuation of payment for the appeal and put off for another meeting whether the state should pay for both sides of the dispute.
The next meetings of the Committee are February 6, March 5 and April 2.