The Colorado Supreme Court has received a handful of briefs on the question it agreed to take up about the length of the state legislative session. In mid-March, lawmakers voted on a resolution to adjourn until at least the end of the month to try slowing the spread of the novel coronavirus. But that left the question of whether the legislature can make up the lost time when the regular session resumes.
An amendment to the Colorado Constitution limits the legislative session to “120 calendar days.” Briefs submitted to the Supreme Court by various interest groups are split over whether that means the days have to be consecutive, meaning the session would end on May 6 no matter what, or whether an emergency situation such as this public health crisis allows lawmakers to make up the missed days.
Gov. Jared Polis and Attorney General Phil Weiser have submitted a brief to the Colorado Supreme Court asking the high court to decide that the 120 days allowed need not happen consecutively during a declared disaster emergency. Instead, says the brief filed March 24, the Colorado Constitution’s 120-day limit — but which haven’t been invoked until now, says the brief — should be interpreted to only apply to days the legislature is actually convened.
Joint rules adopted by the General Assembly more than a decade ago interpreting the 120-day limit say the days are counted consecutively from the start of the session, unless a public health disaster disrupts the session, and then only days that at least one chamber meets are counted. The newly filed joint brief asks the Supreme Court to rule that those clarifications are constitutional.
“This narrow exception — triggered not at the General Assembly’s discretion but upon the Governor’s declaration of a qualifying disaster emergency — is consistent with the voters’ intent that the General Assembly be a part-time, citizen legislature and provides flexibility to the General Assembly to fulfill its obligations responsibly while the State is facing a public health crisis,” argues the brief.
According to the brief, a constitutional challenge to the legislature’s adopted rules have a high bar to meet because the legislature has authority to clarify constitutional ambiguities in line with the sections’ underlying purposes. The brief also seeks to apply logic in case law to legislative rules that presumes statutes are constitutional.
“The same logic supports giving legislative rules the same presumption, as the Court of Appeals has done,” says the brief. Summarizing its argument, the joint brief says striking down the legislature’s rules could “cripple” government by depriving the General Assembly of flexibility during a public health crisis, and also by continuing to operate in conditions that limit public access to the legislative process.
But a brief submitted by Republican members of the Colorado House and Senate makes much different arguments. The brief, also submitted March 24, says the state Constitution’s plain language limits the legislative session to 120 calendar days in a row.
“Rule 44(g) is unconstitutional because it either ignores or effectively changes the plain language in the Colorado constitution, which only the people may amend as the constitution itself provides,” argues the brief. It says the Supreme Court should interpret the 120-day limit according to the common understanding of “calendar days,” arguing the phrase has always meant 120 consecutive days.
The brief also argues that the governor’s authority to call a special session — which can also be called by a two-thirds vote in each chamber — is sufficient for legislative action in light of a declared disaster emergency. A brief filed by Democratic state lawmakers says special sessions can only cover specific topics laid out in a request to convene, so a special session isn’t a substitute for the regular session.
Greenberg Traurig is representing the Republican lawmakers, and WilmerHale is representing the legislature’s Democrats.
— Julia Cardi