The Colorado Supreme Court held in a 4-3 decision last week that a high-speed bill reading during the General Assembly’s 2019 session didn’t comply with the Colorado Constitution’s reading requirements.
The bill in question was HB19-1172, a 2,000-page bill to recodify existing statutes on the regulation of professions and occupations. In an effort to stall other legislation, Senate Republicans asked that the bill be read at length.
A Senate clerk read the bill aloud for more than three hours, but Secretary of the Senate Cindi Markwell eventually decided the reading was a task for machine, rather than man, and directed staff to set up several computers on the Senate floor to simultaneously read different sections of the bill at up to 650 words per minute.
Senate Republicans, including Sen. John Cooke of Weld County and Senate Minority Leader Chris Holbert of Parker, filed suit against Markwell and President of the Senate Leroy Garcia, Jr. of Pueblo, alleging the computers’ reading of the bill didn’t meet the requirements of the Colorado Constitution.
The Denver District Court sided with the Republicans by issuing an injunction and declaring that bills must be read “in an intelligible manner and at an understandable speed.” The parties jointly asked the Colorado Supreme Court to review the district court’s decision, citing the likelihood of future litigation over bill reading methods as one of the reasons the high court should take the case.
On appeal, Markwell and Garcia argued that the lower court erred by deciding a non-justiciable political question. Cooke and his fellow Republicans argued that Colorado case law doesn’t support Markwell’s political question challenge, which they called “unprecedented” and an attempt to “inoculate themselves from constitutional scrutiny.” Cooke also argued the district court correctly interpreted the Colorado Constitution’s Reading Clause as requiring something more than “using multiple computers … to read different portions of the bill at one time, at a speed the mind cannot comprehend.”
In the March 15 opinion, the majority found it was “within the judiciary’s wheelhouse” to weigh in on the constitutionality of the Senate’s actions and affirmed the lower court’s determination that the “unintelligible sounds” produced during the computer-aided bill reading didn’t meet constitutional standards. But it found the district court went too far when it tried to dictate the specifics of how the legislature must comply with the state constitution by saying bill readings must be “intelligible” and “understandable.”
“[T]he separation of powers doctrine requires no less and permits no more than to have us interpret the constitution and determine whether the legislature complied with it,” Justice Carlos Samour wrote in the majority opinion.
NARROW DECISION, DISSENTING VOICES
“In determining whether the General Assembly is complying with the constitution, the majority seems to have this pretty narrow view of what the judiciary is allowed to do,” said Holland & Hart partner Chris Jackson. “It almost sounds, to me, like this is a new doctrine, although they don’t call it that and it’s not announced like that.”
In a dissent joined by justices Melissa Hart and William Hood, Justice Monica Márquez said that while it is within the judiciary’s authority to determine whether the legislature’s actions were constitutional, the majority failed to explain why the actions were unconstitutional.
“In my view, the plain language of [the reading requirement] simply requires that bills be ‘read,’ or uttered aloud. Nothing more,” Márquez wrote. “The provision does not, for example, demand that the bill be read ‘by a human voice’ or ‘slowly enough to be intelligible,’ or that the sections of the bill be read ‘in sequence’ or even at a particular decibel level.”
By declining to articulate what the state constitution demands, Márquez added, “the majority has more or less assured that more conflict over the reading requirement will occur in the future.”
A separate dissent penned by Hood and joined by Márquez and Hart states that the majority showed insufficient deference to the Senate’s interpretation of a constitutional provision governing the legislature’s internal affairs. “Separation of powers demands more than the majority’s rule that courts can’t tell the legislative branch what to do but can tell it what not to do,” Hood wrote.
“I think the underlying issue in this case that the justices disagree on is: What is the role of the courts in adjudicating these disputes about the General Assembly’s processes?” Jackson said.
The majority’s unwillingness to weigh in on how exactly bills must be read could lead to future court challenges. While a repeat of the bill-reading method used in 2019 would be deemed unconstitutional, Jackson said, it’s unclear how similar antics, such as having multiple people read the bill simultaneously at high speed, would fare in court. “We just don’t know what the contours of this constitutional requirement are,” Jackson said.
In her dissent, Márquez noted that the General Assembly has allowed multi-voice, simultaneous readings of bills for decades and said the majority’s opinion “calls into question other bills that were read by multiple voices or may have been unintelligible to listeners,” including the 2017 budget Long Bill. Requests for full-length readings are “by no means infrequent,” Márquez wrote, and she raised concerns that “such readings may take up an increasingly substantial portion of the General Assembly’s 120-day session, limiting the work that our legislature can accomplish.”
The implications of the decision extend beyond spats over bill readings. Gov. Jared Polis filed an amicus brief in Markwell v. Cooke that didn’t express support for either side but alerted the court that its decision could “significantly” affect the outcome of another case, Rocky Mountain Gun Owners v. Polis, which is pending before the Court of Appeals. That lawsuit, which challenges the state’s “red flag” gun law, also deals with the political question doctrine.
In the Polis case, lawmakers sought to strike down the red flag law on “purely procedural grounds, undoing the General Assembly’s policy decision on important gun safety legislation,” the governor’s brief states. The Denver District Court dismissed the lawsuit, finding it “raises precisely the type of political question a disciplined judiciary, mindful of its place in the constitutional scheme of things, should avoid.”
Jackson said that if the majority’s decision in Markwell v. Cooke does indicate a new rule on the limits of judicial review when it comes to the actions of a coordinate branch of government, it’s unclear how far the new doctrine might extend.
“Does it just extend to procedural things that the General Assembly does? Does it extend to the governor’s office? Does it extend to the AG or other parts of the state government?” he said.
“I think the court got it absolutely right. And I was very grateful for the opportunity to argue this type of case,” said Jackson Kelly member John Zakhem, who represented Cooke and the other Republican senators in the appeal.
“I think that the justices were very engaged on the issue,” he said. “And obviously, given the depth of the analysis and the insights that so many of them shared in separate opinions, it’s an important issue to them and they handled it with the respect and deference this type of constitutional separation of powers case mandates.”
Zakhem added that he believed the majority made the right choice to reverse in part. “I don’t think that the trial court judge had any intention to violate the separation of powers doctrine,” he said. “But I do think that part of his decision was on thinner ice than the rest of it.”
Zakhem called the decision a “great victory” for his clients and said the case was, “without question, the most enjoyable oral argument” of his career.
“As a lawyer, you read Marbury vs. Madison and kind of digest it,” he said. “How often does any lawyer get to actually argue it with people who are intellectual giants? It was a lot of fun.”