2020 Leg Session, Coronavirus, Dave Kopel, Featured, Gold Dome, Governor Polis, Politics, Scott Gessler, Sherrie Peif

Colorado Supreme Court to decide definition of “calendar days;” Legislative session hangs in balance

DENVER — With the number of closures and stay-at-home orders still growing in Colorado, The Colorado Supreme Court is set to decide whether the General Assembly will be allowed to pick up where it left off when and if it reconvenes.

Under Colorado law the legislature meets for 120 days yearly. Because of the pandemic, House Joint Resolution 20-1007 shut down legislative work on March 14 with the intention of picking back up on March 30. At that time there were 355 bills pending between both chambers. However, the legislature is charged only to pass three very specific laws each year.

  • The Budget.
  • The School Finance Act.
  • The Rules Review Bill.

But with the reaction to the virus growing, it is unclear if the legislature will be able to resume even before it was supposed to end on May 6. It is also unlikely Democrats and Republicans will agree what happens next in how to handle the 120-day provision.

Section 7 of Article 5 of the Colorado Constitution does not define if the 120 days are consecutive or total, saying only: “Regular sessions of the general assembly shall not exceed one hundred twenty calendar days.”

However, according to Joint Rule 23 (d) of the Senate and House of Representatives, “The maximum of one hundred twenty calendar days prescribed by section 7 of article V of the state constitution for regular sessions of the General Assembly shall be deemed to be one hundred twenty consecutive calendar days.”

To that, House Joint Resolution 20-1006 asked the Colorado Supreme Court to determine if bills passed after May 6 — should the legislature convene past that date — could be challenged on constitutionality.

“The rare, almost unprecedented, public health situation currently facing the state warrants resolution by the Colorado Supreme Court whether … the General Assembly, in seeking to protect the public health by adjourning the legislative session … should not be forced to either significantly reduce the length of the legislative session and thereby fail to meet its responsibility to serve the citizens of the state by passing legislation in the public interest or jeopardize the constitutionality of that legislation,” the resolution states in part.

The court agreed to hear the case and asked for briefs from interested parties to be filed by 5 p.m. March 24. It is not clear when the court will rule, although it is expected to be in an expedited manner.

As of that deadline, seven parties filed arguments on both sides of the issue (full briefs can be read at the links below).

  • Colorado General Assembly Democrats, represented by John Walsh, Ken Salazar, Michael Hazel, Matthew Worthington, Mairead Dolan, and Heidi Ruckriegle all from the Denver-based firm of Wilmer Cutler Pickering Hale and Dorr, LLP.
  • Colorado Association of Local Public Health Officials (CALPHO), represented by Matthew Fritz-Mauer, from the Denver-based Kelman Buescher Firm, P.C.
  • Governor Jared Polis and Attorney General Phil Weiser, written by Weiser’s Office.
  • The Left Alliance: ACLU, Adams County Commissioner Steve O’Dorisio, AFT Colorado, Bell Policy Center, Cities of Aurora, Northglenn, Colorado Children’s Campaign, Colorado Criminal Justice Reform Coalition, Colorado Cross-Disability Coalition, Colorado Fiscal Institute, Counties and Commissioners Acting Together, Colorado Criminal Defense Bar, Club 20, Democrats for Education Reform, Denver District Attorney, Good Business Colorado Association, Interfaith Alliance Colorado, Jefferson County Board of Commissioners, Metro Mayors Caucus, SEIU Colorado State Council, Sixth Judicial District Attorney’s Office, Towards Justice and Women’s Lobby of Colorado, represented by David Seligman and Brianne Power from the Denver-based organization Towards Justice.
  • Individual Chris Paulson, represented by Scott Gessler from the Denver-based firm of Gessler Law LLC.
  • Colorado General Assembly Republicans, represented by Troy Eid and Josiah Beamish, representing the Denver-based firm of Greenberg Traurig, LLP.
  • The Independence Institute*, represented by inhouse attorneys David Kopel and Shayne Madsen.

DEMOCRAT VS REPUBLICAN LEGISLATORS —

Legislative Republicans argued, in part, that not only does the Constitution make clear it is 120 consecutive calendar days, but so does resolutions by the General Assembly that have been in effect for the past 32 years, regardless of which political party held the majority.

On the other hand, legislative Democrats argued, in part, the suspension of the 2020 legislative session is unprecedented but necessary because of the ongoing risk to public health and safety. They believe that because of the situation, the General Assembly may “properly construe the length of its term … once it is safe to reconvene, to resume its work from the date of suspension on March 16, and to complete its regular session in the ordinary course.”

Attorneys for Democrats cite a legislative rule passed in 2009 that says the length “construes this provision to be ‘one hundred twenty separate working calendar days’ when ‘the Governor has declared a state of disaster emergency due to a public health emergency.’”

However, attorneys for Republicans countered that joint rule 44(g) is unconstitutional because it ignores or changes the language of the constitution.

“The term “calendar days” has but one commonly understood meaning: Consecutive days, including successive business days, weekend days, and legal holidays,” Eid wrote. “This same popular and common-sense definition of the term “calendar days” pervades this Court’s rulings on a wide range of other issues.”

They pointed out several examples including provisions in election laws, such as “shall be filed no later than 15 calendar days prior to the date for holding the election,” among others.

Eid further argues there are already safeguards in place to address legislation that has not passed by the end of the regular session, including the governor’s authority to call a special session to address specific laws if they are not completed in that 120-day calendar.

“And likewise authorizes the General Assembly to call itself back into session after the 120-day calendar limit has passed,” Eid wrote. “Especially during this very serious time, respecting the constitution, and the protections it provides Coloradans, has never been more important.”

Yet, Democrats say special sessions are not a substitute for regular sessions.

“A special session may only be called by the governor or by a two-thirds majority in each house,” their brief reads. “Special sessions are intended to address specific subject matters, not general business.”

Attorneys for the Democrats point out that special sessions may only pass legislation that has a “rational nexus” to items specified in the request.”

That requirement would not allow for the more than 350 non-required pieces of legislation to get heard.

“No sound basis exists to bar the General Assembly from acting on matters that cannot garner support from a supermajority of each chamber,” the brief reads.

OTHER INTERESTED PARTIES —

Attorneys for CALPHO argue that the court has set precedent when Constitutional language is open to “multiple reasonable meanings.” The court “interpret[s] constitutional provisions as a whole and attempt[s] to harmonize all of the contained provisions,” their brief reads in part, arguing that this interpretation should not be too literal.

They argue joint rule 44 is constitutional based on three points:

  • Its purpose is to structure government so that it protects the rights of people by allowing the legislature latitude during a crisis.
  • The General Assembly must be able to meet intermittently during the crisis.
  • If it can’t meet intermittently it will either be forced to stay in session and spread the disease or continue adjournment and be unable to pass “forward-looking” legislation.

Kopel argued that while some parts of Article V of Colorado’s Constitution contain exceptions that the legislature has discretion to invoke, the calendar day’s clause is not one of them.

Kopel argues that those parts of the Constitution that do allow exception have been abused; therefore, allowing a legislature to extend its own session would be “dangerously tempting.”

“The Safety Clause creates an exception to the standard right of referendum; the exception was intended only for laws ‘necessary for the immediate preservation of the public peace, health, or safety.’” Kopel writes. “Yet the exception has been misused to extinguish or severely diminish the People’s right of referendum. Like exempting a bill from referendum, allowing a legislature to extend its own session is dangerously tempting. The Calendar Days Clause is written to foreclose any possibility of acting on temptation.”

Eid concurred with Kopel on the interpretation of the constitution.

“This court has insisted on adhering to the constitution’s plain language and meaning and honoring the will of the people who create and preserve it,” Eid wrote in part.

Kopel wrote that unforeseen emergencies, including pandemics, are not new in Colorado and the United States.

  • The 1918 influenza pandemic that killed 766 people per 100,000 of population.
  • The Asian Flu pandemic of 1957-58 that killed 115,700 Americans.
  • The 1968-72 Hong Kong flu that killed 111,927 Americans.
  • The HIV virus of 1988 that killed 600,000.

“… All sorts of surprising emergencies could arise,” Kopel wrote.

Gessler agreed, writing changing the interpretation is not necessary.

“Using a ‘declared disaster emergency’ is an ill-conceived standard; declared disaster emergencies are extremely common and have no bearing on whether the General Assembly can, in fact meet,” Gessler wrote. “Constitutional interpretation does not change based on a ‘declared disaster emergency.’”

Kopel’s brief also outlined the following arguments.

  • The Colorado Constitution does not allow the legislature to exempt itself from any of the strict textural rules on legislative process, citing the GAVEL Amendment, which limits the legislature to “120 calendar days” with no exceptions.
  • When Article V rules do have exceptions, the article explicitly says so.
  • Strict control on legislative processes, with no exceptions, has always been the standard of Article V.

“Because state legislatures have proven that they are inclined to outrun their boundaries, the legislative process must be governed by clear, precise rules that the legislature can never evade,” Kopel wrote.

In summary, Kopel argued the longer a session, the more possibility for corruption.

“The longer the session runs, the less the ability of a legislator to earn an independent living,” Kopel wrote. “This the greater the legislator’s dependence on powerful interests to promote re-election. In a vicious cycle, powerful interests become all the more powerful, as legislators protect them from competition and sub sides them with tax dollars.”

Weiser disagreed, arguing a strict interpretation would only “cripple” government.

“Voters intended to place some limits on the General Assembly, but they did not intend to cripple the government’s ability to function,” Weiser wrote. “… Requiring consecutive counting in all situations would deprive the General Assembly of flexibility at the exact moment it needs it most.”

*Complete Colorado is a project of the Independence Institute.

 

 

 

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